THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 A TREATISE 
 
 ON 
 
 THE RULES 
 
 FOR THE SELECTION OF THE 
 
 PARTIES TO AN ACTION 
 
 BY 
 
 A. V. DICEY, Esq., 
 
 OP THK INNEK TEMPLE, BABEISTER-AT-ULW. 
 
 SECOND AMERICAN EDITION. 
 
 BY 
 
 W. ALDRICH. 
 
 JERSEY CITY: 
 
 FREDERICK D. LINN & CO^ 
 
 1886.
 
 T 
 
 Copyright, 1886, 
 
 by 
 
 FREDERICK D. LINN <Sc CO.
 
 PREKACK 
 
 TO THE 
 
 SECOND AMERICAN EDITION. 
 
 During the ten years that have elapsed since the 
 appearance of the previous American edition of this 
 work, many cases have been adjudicated in which 
 the principles and rules governing parties to acdons 
 have received application. In the present edidon the 
 editor has embodied such of the American decisions 
 as seemed to him important. 
 
 New York. June 26th, 1886. 
 
 729<;08
 
 PREFACE 
 
 TO THE ENGLISH EDITION 
 
 The aim of this treatise is to reduce or digest the 
 law of parties into a series of rules, each of which is 
 illustrated and explained by appropriate cases and 
 examples, and confirmed, wherever this is possible, by 
 quotations from judgments, or from the pages of 
 writers of acknowledged reputation. In the explana- 
 tory portions of the text will be found, it is hoped, all 
 the most important decisions or enactments bearing 
 on each point under consideration ; so that any person 
 who wishes not only for a rule but also for an account 
 of the cases or statutes on which it rests, may obtain 
 the information which he requires; and care has been 
 taken to employ, even at the cost of some circumlo- 
 cution or occasional awkwardness of expression, the 
 ipsissima verba either of Judges or of eminent 
 writers, so that the statements made may carry a 
 weight which can not attach to a summary of the law 
 given in the words of an unknown author. 
 
 The labors of Mr. Chitty, Mr. Broom, and Mr
 
 vi PREFACE. 
 
 Justice Lush, have, it is scarcely necessary to say, 
 geatly facilitated the production of this work, but 
 have, it is hoped, not necessarily rendered it either 
 useless or superfluous; inasmuch as all of these dis- 
 tinguished authors aimed rather at stating the law ot 
 parties than at reducing it to a systematic form ; 
 whilst both Mr. Chitty and Mr. Justice Lush were 
 compelled from the scheme of their works to treat 
 this branch of the law a3 merely subsidiary to the law 
 of "practice," and were therefore precluded from its 
 full and systematic treatment. 
 
 The practical advantage of the arrangement pur- 
 sued in this treatise is, that it enables the reader to 
 see at a glance what the rule of law is ; whilst it frees 
 him from the necessity of collecting the principle for 
 which he is in search from the decisions or statutes in 
 which it is embodied ; and that it further puts it in 
 his power to refer with great readiness to the part of 
 the subject on which he may desire to be informed. 
 An advantage of a more speculative nature is that 
 this arrangement exhibits the law of parties as a whole, 
 and by showing the relations between its different 
 parts, makes, it is hoped, apparent the fact that this 
 somewhat complicated and intricate branch of the 
 law, depends upon and is the expression of a few 
 simple principles.* 
 
 Some persons may think, and not unreasonably, 
 that the present time is inopportune for a systematic 
 consideration of the law of parties, inasmuch as the 
 
 * See chapter III., marg. pp. 28-77
 
 PREFACE. vii 
 
 fusion of common law and of equity, which can not 
 be much longer delayed, will assimilate the maxims 
 of common law to those which govern proceedings in 
 courts of chancery, and will therefore tend to the 
 modification or repeal of many among the more tech- 
 nical precepts embodied in this treatise ; yet this 
 period of approaching change affords in reality, it is 
 submitted, an appropriate time for an examination 
 into the rules which regulate an action at law. A 
 fusion of law and equity, while it must end by mod- 
 ifying two different systems of procedure, will bring 
 into great prominence the rules which govern the 
 choice of plaintiffs and of defendants. A conjecture 
 may indeed be hazarded, that a vast number of the 
 rules of common law will, as being founded on the 
 dictates of justice and of common sense, survive under 
 slightly different shapes, in the law which will be 
 administered by the proposed High Court. But 
 whether this anticipation prove correct or not, it is 
 certain that whenever a court is founded which shall 
 be at once a court of common law and of equity, a 
 knowledge of the rules which now regulate the choice 
 of parties in an action, and of the principles on which 
 they depend, will for the purpose of dealing with the 
 many questions which must arise in the course of the 
 revolutions in our legal system, become of the highest 
 importance, no less to the practical than to the spec- 
 ulative lawyer. If versed only in the proceedings at 
 common law he will need clearly to seize the princi- 
 ples on which such proceedings rest, in order that he
 
 viii PREFACE- 
 
 may understand how far and in what direction they 
 are modified by the rules of courts of equity. If, on 
 the other hand, he is practically acquainted only with 
 proceedings in Chancery, he will require to grasp the 
 bearing and nature of technical rules of which he 
 has hitherto had no experience. If the present trea- 
 tise shall in any measure facilitate the comprehension 
 of the principles on which the law of parties rests, it 
 will have attained its object, and, it is hoped, have 
 justified its publication at the present time. 
 
 A. V. D.
 
 TABLE OF CONTENTS. 
 
 [references are to the marginal paging.] 
 
 RULES COMMON TO ALL ACTIONS. 
 
 f. — The person who can sue and be 
 
 sued > >~ 5 
 
 II. — The Division of Actions . . — 6-27 
 
 III. — General Rules applicable to all 
 
 actions 2-9 28-77 
 
 RULES IN ACTIONS ON CONTRACT. 
 
 PLAINTIFFS. 
 
 IV.— General Rules . 
 
 V. — Principal and Agents. 
 VI. — Partners 
 VII. — Corporations 
 VIII.— Husband and Wife 
 IX. — Bankrupt and Trustee 
 X — Executors and Administrators 
 
 10-16 
 17-19 
 
 20-24 
 25-28 
 
 29-33 
 34-40 
 41-45 
 
 78-T 29 
 130-147 
 148-162 
 163-170 
 171-188 
 189-204 
 205-22?
 
 CONTENTS. 
 
 [References art 
 
 DEFENDANTS. 
 
 CNAPTBR 
 
 XL. — General Rules . 
 XII. — Principal and Agent 
 XIII. — Partners 
 XIV. — Corporations 
 XV.— Infants 
 XVI.— Husband and Wife 
 XVII. — Bankrupt and Trustee 
 XVIII. — Executors and Administrators 
 
 RULES 
 
 PAGES 
 
 46-52 
 
 223-238 
 
 53-54 
 
 239-265 
 
 55-58 
 
 266-275 
 
 f9-62 
 
 276-283 
 
 63-65 
 
 2S3-295 
 
 66-69 
 
 296-305 
 
 70-72 
 
 306-312 
 
 43-77 
 
 313-324 
 
 RULES IN ACTIONS FOR TORT. 
 
 PLAINTIFFS. 
 
 XIX. — General Rules . 
 XX. — Principal and Agent . 
 XXL— Partners 
 XXII.— Husband and Wife . 
 XXIII. — Bankrupt and Trustee 
 XXIV. — Executors and Administrators 
 
 78-82 
 
 83 
 84-85 
 86-88 
 89-91 
 92-95 
 
 325-382 
 
 383 
 
 384-388 
 
 389-394 
 395-401 
 402-40^ 
 
 DEFENDANTS. 
 
 XXV.— General Rules . 
 
 XXVI. — Principal and Agent 
 XXVII.— Partners . 
 XXVIII. — Corporations 
 
 XXIX. — Infants 
 
 96-100 410-440 
 
 loi— 103 441—467 
 
 104 468-469 
 
 105 470-473 
 
 106 474-475
 
 to marginal pagingi\ ^ Uly 1 £Ll\ 1 0. X l 
 
 CHAFTBR RULES FAOKS 
 
 XXX. — Husband and wife . . . 107 476-479 
 
 XXXI. — Bankrupt and Trustee . . 108 480 
 
 XXXII. — Executors and Administrators . 109 481-483 
 
 EJECTMENT. 
 
 XXXIII — Ejectment 110-113 484-498 
 
 EFFECT OF ERRORS. 
 
 XXXIV. — Non-joinder, Mis-joinder, and 
 
 Amendment .... 11 4-1 18 499-509
 
 PARTIES TO ACTIONS. 
 
 CHAPTER I. 
 
 THE PERSONS WHO CAN SUE AND BE SUED. 
 
 Rule i. — All persons can sue and are liable to be 
 sued in an action at law. 
 
 The general principle of law is, that "as the law 
 grants redress for all injuries, and gives a remedy for 
 every kind of right, so it is open to all kinds of persons, 
 and none are excluded from bringing an action." {a) 
 
 Hence, subject to the exceptions afterwards men- 
 tioned, {d) persons of all descriptions, of whatever rank, 
 condition, age, or country, are able to sue, and are liable 
 to be sued. 
 
 The sovereign can sue as a common person in respect 
 of causes of action accruing to him in his individual 
 character ; {c) the Queen Consort can bring or defend an 
 action as a feme sole, {d) ' 
 
 (a) Bac. Abr., Action, B. 
 
 (3) Each rule is laid down in the form of an absolute statement, but must 
 be understood as subject to the exceptions afterwards enumerated ; the scheme 
 of this treatise being to lay down in each case, first the general rule, and then 
 the exceptions to it. The rules are for the sake of easy reference numbered 
 consecutively, without any regard to their comparative importance. 
 
 (c) Com. Dig., Action. B. i. 
 
 (</) Com. Dig., Action, B. 2 ; Coke, Lit., 33 a. 
 
 1. King of Prussia v. Keupper, ereign or government has been ac- 
 22 Mo. 557. But only if the sov- knowledged by our government. 
 1
 
 2 . PARTIRS TO ACTIONS. 
 
 A foreign sovereign is entitled to sue \n our courts 
 [2] for breaches of contract, {c) or for wrongs done to 
 him by English subjects, without authority from the 
 English Government, in respect of property belonging to 
 him either in his individual or in his corporate capacity ; 
 but he can not maintain a suit here for invasions of his 
 prerogative rights as reigning sovereign. (/) Corpora- 
 tions, married women, infants, idiots, lunatics, and aliens, 
 can sue and be sued.' 
 
 Exception i. — Felons, outlaws, and alien enemies can not sue. 
 
 A person convicted of felony becomes incapable of 
 suing at law or in equity, and remains under this disabil- 
 ity until either he has obtained a pardon or his term ol 
 punishment has expired, {g)"" 
 
 A felon (unless he receives a free pardon containing 
 words of restitution) can not, generally, on his disability 
 being removed, sue for causes of action which have 
 
 (<?) Emperor of Brazil v. Robinson, 6 A. & E. 8oi. 
 
 (/) Emperor of Austria v. Day, 30 L. J. 690, Ch. ; 3 De Gex, F. &- J. 217 ; 
 Mostyn v. Fabrigas, v. Smith, L. C, 6th ed., 663. 
 
 (g) Whitaker v. Wisbey, 12 C. B. 44 ; 21 L. J. 116, C. P. ; Bullock v. 
 Dodds, 2 B. & Aid. 258 ; Coke, Litt., 390 b ; Addison, Contracts, 6th ed.. 
 1023. By a conviction of felony the goods and chattels of the felon are imme- 
 diately forfeited to the Crown ; by attainder which follows on judgment given, 
 his lands and tenements are forfeited. Bullen, Pleadings, 3rd ed., 556 
 
 Republic of Mexico v. De Arangoiz, contract, when not living with their 
 
 5 Duer, 634. tribes. Stokes v. Rodman, 5 R. I. 
 
 When the property of a foreign 405 ; but not otherwise. Rollins v. 
 
 government is vested in its ambas- Cherokee Indians, 87 N. C. 229. 
 
 sador for the time being, he may 2. In the United States there is 
 
 sue for it in his own name. Peel v. no general forfeiture of property or 
 
 Elliott, 7 Abb. Pr. 437 ; Newman v. the right to maintain an action on 
 
 Wilson, I La. Ann. 48. a conviction lor treason or felony, 
 
 I. Indiansmay sue each other, in and the maxim or principle of 
 
 partition. Swartzel v. Rogers, 3 civilly dead cannot apply even 
 
 Kan. 377 ; for tort, unless disa- when the convict is a party plain- 
 
 bility pleaded in abatement before tiff. Cannon v. Windsor, i Houst. 
 
 answer. Jaha v. Belleg. 105 Mass. 144; Platner v. Sherwood, 6 Johns. 
 
 211. And they may be sued on Ch. 118. By statute in New York,
 
 WHO CAN SUE AND BE SUED. ^ 
 
 accrued, or which depend upon contracts made with him 
 at any time before such removal. 
 
 But though this is true as a general rule, a person 
 convicted of felony may, on his capacity to sue being re- 
 stored, in some cases sue on contracts made with him, or 
 for wrongs done to him before his disability ceased. 
 
 Inasmuch as his freehold land is not transferred to the 
 Crown until office found, [h) he may sue, unless the 
 Crown interfere to prevent him, on contracts (<?. g., for 
 the payment of rent, or to repair) connected with his free- 
 hold property, and may bring ejectment, even though 
 attainted of felony, when there has been no office 
 found on behalf of the Crown ; [i) and perhaps he [3] 
 may sue for injuries done to his freehold property. 
 
 He may also sue for any personal wrong done to him 
 before or after the commencement of the period of his 
 disability, e. g., for an assault, {k) 
 
 An outlaw can not, while his outlawry lasts, come 
 into court for any other object than to apply to have his 
 outlawry reversed or set aside, (/) and can not, therefore, 
 bring an action as long as his disability continues, {m) 
 
 An outlaw is restored, on the reversal of his outlawry, 
 
 (h) Kynnaird v. Leslie, L. R., I C. P. 389 ; 35 L. J. 226, C. P. ; Addison. 
 Contracts. 6th ed., 1024. 
 
 (i) Cole, Ejectment, 573. Doe d. GriflTith v. Pritchard, 5 B. & Ad. 675. 
 
 (k) Bernard's case, Owen, 22 ; Com. Dig., Forfeiture, B, 2. 
 
 (/) Coke, Lilt., 12S a. 
 
 (m) Addison, Contracts, 6th ed., 1024. 
 
 a sentence of imprisonment in a having abated on his civil death, 
 
 state prison, for any term less than Freeman v. Frank, 10 Abb. Pr. 370. 
 
 life, suspends all the civil rights of But still he may be sued by his 
 
 the person so sentenced during the creditors and the suit against him 
 
 term of such imprisonment. 3 R. prosecuted to judgment. Davis v. 
 
 S. (7lh ed.) 2538. And the person Duffic, 4 Abb. Pr., N. S., 478. Par- 
 
 so convicted has no right to com- don of one sentenced to imprison- 
 
 mence or m.iintain an action in the ment for life gives him the right, on 
 
 courts of that state. O'Brien v. habeas corpus, \ot\\Q CMsiody oi \\\s 
 
 Hagan, i Duer, 664. Nor can he children from his wife and the hus- 
 
 be sued for a tort (the rape for band she had married upon the dis- 
 
 which he was convicted], the action solution of the former tie worked bj
 
 4 PAKT/I-S TO ACTIONS. 
 
 to all his riirhts, (//) aiul stands m the same position as if 
 he had never been outlawed, {o) 
 
 An alien enemy can not, during the continuance o\ 
 war, unless under the license or protection of the Crown, 
 (/>) bring an action, or continue an action commenced 
 belore the war began, {(f) Under the term alien enemy 
 are included not only the subjects of any state at war 
 with us, but also any British subjects or the subjects of 
 any neutral state voluntarily residing in a hostile coun- 
 try.' 
 
 British subjects detained prisoners abroad are not 
 alien enemies, (r) and in one case, a person held as a 
 
 (m) Com. Dig., Outlawry, C. 5. 
 
 (p) Ihid., and St. John's College v. ]\Iurcott, 7 T. R. 259. 
 
 (/>) Wells V. Williams, i Salk. 46. 
 
 {g) Le Brett v. Papillon, 4 East, 502 ; Alcinous v. Nigreu, 4 E. & B. 217 ; 
 24 L. J. 210, Q. B. 
 
 {>■) Antoine v. Morshead, 6 Taunt. 237 ; Daubuz v. Morshead, 6 Taunt 
 332. 
 
 t 
 
 the sentence, though they had been U. S. 274. 
 
 appointed guardians of the child- i. The persons must, at the time 
 ren. But the remarriage is not of the contract, have been under 
 affected, nor the sale of his prop- the dominion of different and op- 
 erty, by the administrator appointed posing flags. Acklen v. Hickman, 
 on his civil death, nor the posses- 60 Ala. 571. But when commercial 
 sion of his heirs which became intercourse between states at war 
 vested by that event. Matter of has been prohibited by the laws of 
 Deming, 10 Johns. 232, 483. one of them, contracts made in 
 Pardon bars a civil action for a violation thereof cannot be en- 
 penalty incurred by the crime, forced in its courts, and it is their 
 United States v. Tilton, 7 Ben. 306 ; duty to so declare whether the ille- 
 United States v. McKee, 4 Dill. 128. gality of the contract be pleaded or 
 It does not restore forfeited prop- not. Shotwell v. Ellis, 42 Miss. 
 erty previously condemned and 439; Mansfield v. McLearn, 22 La. 
 sold. Knote v. United States, 95 Ann 216. But this rule does not 
 U. S. 149; nor invalidate previous apply to contracts made prior to the 
 Judicial confiscation and sale; war. Stiles v. Easley, 51 111. 276. 
 United States v. Six Lots of Ground, And though the civil war suspended 
 I Woods, 234; but does restore all the judicial enforcement of con- 
 rights of property not become tracts between hostile parties, still 
 vested in others by judicial pro- their obligation did not cease and 
 cess ; Osborne v. United States, 91 the remedy revived with the resto-
 
 WHO CAN SUE AND BE SUED. 5 
 
 pnsoner of war in this country was allowed to sue upon 
 a contract for services rendered by him whilst a pris- 
 oner, {s) 
 
 The disability of an alien enemy ceases on the restora- 
 tion of peace ; {t) and though no action can be brought on 
 contracts made with him during the time of war, an 
 alien, whose country has been at war with our [4] 
 own, can, on the restoration of peace, bring an 
 action on a contract {71) made or for a wrong done before 
 the commencement of the war. {v) ' 
 
 The disabilities of an alien enemy are less than they at 
 first sight appear. " On declaring war, the king usually, 
 m a proclamation of war, qualifies it by permitting the 
 subjects of the enemy resident here to continue so long as 
 they peaceably demean themselves, and without doubt 
 such persons are to be deemed alien friends in effect ; {y^ 
 and though an alien should come here after the war com- 
 menced, yet, if he has been commorant here by the license 
 of the king ever since, he may clearly maintain an 
 action." {z) ' 
 
 {s) Sparenburgh v. Bannatyne, i B. & P. 163. 
 
 (/) Harman v. Kingston, 3 Camp. 150, 152 ; Flindt v. Waters, 15 
 East, 260. 
 
 (m) Provided that the Crown has not interfered to seize the debt, Flindt v. 
 Waters, 15 East, 260. 
 
 {v) Harman v. Kingston, 3 Camp. 150, 152; Flindt v. Waters, 15 East, 
 260. 
 
 (y) Coke, Litt., 129 b, note by Hargreave. 
 
 (2) Williams, Exors., 6th ed., 222. 
 
 ration of peace. Semmes v. City, reason of voluntary residence with- 
 
 &c., Ins. Co., 36 Conn. 546; Spen- in the insurrectionary district, and 
 
 cer V. Brower, 32 Tex. 663. The being an owner of cotton burned 
 
 same result would have followed by a confederate soldier, under the 
 
 by the principles of public law orders of the provost-marshal, has 
 
 without the non-intercourse act of no action against the soldier for its 
 
 congress. United States v. Gross- destruction to prevent its falling 
 
 mayer, 9 Wall. 72. One co-opera- into the hands of the federal forces, 
 
 ting directly or indirectly in the Ford v. Surget, 97 U. S. 594. 
 
 insurrection against the govern- But a creditor in a loyal state, 
 
 ment of the United States, or an whose debt to a citizen of a seced- 
 
 enemy of the United States by ing state was sequestrated by the
 
 6 PARTIES TO ACTIONS. 
 
 To an action ibr breach of contract by two or more 
 persons, it is a defense that one of them is a felon, an out- 
 law, or an alien enemy ; {ci) and it is said, that if the cause 
 of action be capable of severance, as an injury done to a 
 joint chattel, {b) the plaintiff, who is not a felon, &c., may 
 recover for his share of damages in spite of the disability 
 of his co-owner. 
 
 Felons, outlaws, and aliens, can sue as executors, ad- 
 ministrators, {c) or trustees, and on all occasions where 
 they do not sue in their own right. 
 
 Felons, outlaws, and aliens are liable to be sued. 
 
 Exception 2. — The sovereign, foreign sovereigns, and am- 
 bassadors can not be sued. 
 
 The king can not be made defendant in an action. 
 [5] Redress must be sought for, if it is obtainable at 
 all, by a petition oi right, {dy 
 A foreign sovereign clearly can not be sued in the 
 •:ourts of this country for any act done by him in ths 
 character of a sovereign prince ; {e) and it would appear 
 most probable that he can in no case be made defendant 
 in an action. {/) 
 
 (a) Com. Dig., Abatement, E. 2. 
 
 (l>) Lush, Practice, 3rd ed., 5. 
 
 [c) Caroon's case, Croke, Car. 9 ; Brocks v. Phillips, Croke, Eliz. 683, 
 Coke, Litt.. 123 b ; Kynnaird v. Leslie, L. R., I C. P. 400 ; 35 L. J. 226, C. P. 
 
 {d) Canterbury's case, I Phil. 322 ; and Com. Dig., Action, C. I. 
 
 (e) Duke of Brunswick v. King of Hanover, 6 Beav. i ; 2 H. L. I ; Wads- 
 worth V. Queen of Spain, 17 Q. B. 171 ; 20 L. J. 488, Q. B. 
 
 (/) But see Munden v. Duke of Brunswick, 10 Q. B. 656 ; 16 L. J. 300, 
 Q. B. Westlake, Private International Law, ss. 135-139. 
 
 ccnfederate authorities of that state, v. The Light Boats, 11 Allen 162; 
 
 has his action against the debtor's Goldsmith v. Revenue Cutter, 6 
 
 executors after the war. Williams Oreg 252. Nor can a state of the 
 
 V. Brufify, 96 U. S 176 Union in its own courts. Ambler 
 
 I. A government cannot be sued v. Auditor General, 38 Mich. 750; 
 
 in its own courts without its own People v. Talmage, 6 Gal. 257 ; 
 
 consent. The Siren, 7 Wall. 153; I'eople v. Miles, 56 Gal. 401 ; Rail- 
 
 fhe Davis, 10 Wall. 18; United road Co. v. Brown, 24 Minn. 575; 
 
 States V. Clark, 8 Pet. 444 ; Briggs Fisk v. Cuthbert, 2 Mont. 595 ; or
 
 WHO CAN SUE AND BE SUED. 
 
 A public minister {g) accredited to the Queen by a 
 foreign state, is privileged from liability to be sued here 
 in civil actions, (/:) and hence such a minister has been 
 held not liable to be sued for calls due to a company of 
 which he was shareholder ; (z) nor would it seem can he 
 be sued for a tort, e. g., an assault.' 
 
 (g) Magdalena Steam Nav. Co. v. Martin, 2 E. & E. 94; 28 L. J. 310, 
 Q. B. 
 
 (A) Magdalena Steam Nav Co. v. Martin, 2 E. & E. 115 ; 28 L. J. 510, 
 Q. B. 
 
 (?) Ibid. 
 
 in the federal courts ; McCauley v, 
 Kellogg, 2 Woods, 18. And though 
 the suit be against the executive 
 officers in their official capacity, it 
 is in effect against the state and pro- 
 hibited by the twelfth amendment 
 to the constitution. Ibid. And the 
 mere consent of a state officer, by 
 answering in its name, cannot bind 
 it. Dunn v. Railroad Co., 8 S. C. 
 231. When the constitution pro- 
 vides that the legislature shall by 
 law direct the manner and courts in 
 ■which suits shall be brought against 
 the state, there can be no action 
 prosecuted any other way. Green 
 V. Graham, 29 Ala. 61 ; Bradford v. 
 State, 7 Neb. in. And if the leg- 
 islature fails to thus provide, a 
 claimant is without remedy. Tur- 
 ner V. State, 27 Ark. 337 ; People 
 V. Talmage, 6 Gal. 258. 
 
 I. But an indictment of a citizen 
 for an assault on an ambassador is 
 not a case affecting ambassadors, 
 within the second section of the 
 
 third article of the constitution. 
 United States v. Ostega, 1 1 Wheat. 
 467. The exemption of an ambas- 
 sador from the municipal law of the 
 country is not personal, but is the 
 privilege of the government he rep- 
 resents, and cannot be waived. 
 Davis V. Packard, 7 Pet. 276. The 
 privilege attaches to domestic ser- 
 vants of a foreign minister. United 
 States V. La Fontaine, 4 Cranch C. 
 C. 173 ; to attaches of the legation ; 
 United States v.Benner, Baldw.234; 
 and to the dwelling-house of the 
 minister ; United States v. Jeffers, 
 4 Cranch C. C. 704; but not to his 
 garden; 1 Op. Atty.-Gen. 141. 
 That the person has been received 
 as an ambassador by the executive 
 is conclusive as to his public char- 
 acter, and the court cannot inquire 
 into the validity of his appointment. 
 United States v. Liddle, 2 Wash. C. 
 C. 205. Consuls are not privileged 
 as public ministers. Common- 
 wealth v. Kosloff, 5 Scrg. & R. 543
 
 PARTIES TO ACTIONS. 
 
 CHAPTER II. 
 
 THE DIVISION OF ACTIONS. 
 
 Actions are of different kinds, and can be classed or 
 divided on various principles, (a) 
 
 T\\Qy can be divided, — firstly, according as they are 
 actions on contract (called also actions ex contractu), or 
 actions for a wrong or tort (called also actions ex delicto), 
 under which main classes they can be again subdivided 
 according to what are called their forms ; — secondly, 
 according as they are transitory or local. 
 
 The most important division is that into actions on 
 contract, and actions for tort. 
 
 (A) Actions on Contract and Actions for Tort, or Actions ex 
 contractu and Actions ex delicto. 
 
 The maintenance of an action depends upon the exis- 
 tence of what is termed a " cause of action," i. e., of a 
 right on the part of one person (the plaintiff), combined 
 with the violation of, or infringement upon, such right by 
 another person (the defendant). Thus, if A. enters into 
 a contract with X. for the supply of goods by X. to A., 
 
 and X. does not supply the goods, or if X. wrong- 
 [7] fully imprisons A., A. has in either case a " cause 
 
 of action " against X. In the first instance A. has 
 
 (rt) An old division is that into real actions, i. e., actions brought for the 
 specific recovery of lands, tenements, and hereditaments ; personal actions, 
 i. e., actions brought either for the specific recovery of goods, or for the re- 
 covery of debts, or of damages in compensation for a breach of contract, ot any 
 other injury ; and mixed actions, z. ^., actions appertaining in some degree to 
 both of the former classes. All the actions treated of in this treatise are, with 
 the exception of Ejectment, personal actions. 
 
 Ejectment, which may be considered a mixed action, is treated of sepa 
 rately See Chap. XXXIII.
 
 DIVISION OF ACTIONS. 9 
 
 a right to have the contract performed by X., and there 
 has been a violation or infringement upon this right in 
 consequence of the non-performance or breach of the con- 
 tract by X. In the second instance A. has a right to his 
 personal liberty, and there has been a violation or in- 
 fringement upon this right, through the imprisonment of 
 A. by X. There goes, it should be noticed, to make up 
 the cause of action at once the " existence " and the " vio- 
 lation " of a right, and the expression " cause of action " 
 means (in strictness) the whole cause of action, i. e., all 
 the facts which together constitute the plaintiff's right to 
 maintain the action, [b) This should be noticed, because, 
 whilst the expression " action on contract " directs atten- 
 tion to the right only as the foundation of the action, the 
 expression "action for tort " directs attention to the " in- 
 fringement " of the right only as the foundation of the 
 action, and because the expression "cause of action" is 
 sometimes less accurately {c) used as meaning one part 
 only of the cause of action, sc, the violation of, or the 
 infringement upon, the plaintiff's right. 
 
 In each of the supposed cases {sc, of an action for the 
 non-delivery of goods, and of an action for false impris- 
 onment), there exists a right on the part of the plaintiff; 
 but his right is in each instance of a different character. 
 In the first case, A.'s right is a right against X. only, and 
 depends solely on the existence of a contract between 
 him and X. In the second case, A.'s right, sc. not to be 
 deprived of his personal liberty, is a right against X. ; 
 but it is also a right possessed by A. against the world 
 generally, and it is further a right independent of the 
 existence of any contract between A. and X. The 
 first right is a right dependent upon the existence 
 of a contract. The second right is inde- 
 pendent of the existence of any contract. Upon [8] 
 this difference depends the distinction between 
 actions on contract and actions for tort. 
 
 {b) See Allhusen v. Malt^arcjo, L. R., 3 Q. 13. 340 ; 37 I.. J. 169, Q. B. , 
 Sichil V. Horch, 2. H. & C. 954 ; 33 L. J. 179. Ex. 
 
 {c) Slade v. Noel, 4 F. & F. 424 ; Life v. Rmm.I, f) \V. R. 283.
 
 lO PARTIES TO ACTIONS. 
 
 I. Actions on Contract, or ex contractu. 
 
 An action on contract is an action brought for the non- 
 performance or breach of any contract or promise, 
 whether expressed or implied, whether made by deed, 
 simply in writing, or by word of mouth. An action on 
 contract, though said to be brought on the contract, 
 because a contract must exist as the basis of it, is, strictly 
 speaking, an action for the breach of a contract. And, 
 in order to maintain the action, it is no less necessary 
 that a contract should be broken than that it should exist. 
 This holds good whatever be the nature of the contract 
 sued upon, e. g., whether it be a promise to pay for goods 
 supplied or a covenant by deed to pay rent. 
 
 In the case of a debt, e.g., for goods supplied other- 
 wise than on credit, an action can, it is true, be brought 
 immediately that a debt is incurred, i. e., on the delivery 
 of the goods, and without any demand upon the debtor 
 for pa3'ment. The explanation of this is, that in the case 
 of such a debt the law considers the agreement to be (in 
 the absence of any special terms) to pay the debt imme- 
 diately, and the mere non-payment constitutes a breach 
 of contract.' 
 
 In a covenant, on the other hand, there is generally a 
 time fixed for the performance of the covenant, and until 
 this time has arrived, an action for its non-performance 
 can not be brought. But in either case no action can be 
 brought on the contract unless and until a breach of the 
 contract has occurred, {d) 
 
 (d) Com. Dig., Action, E. A case such as Hochster v. De la Tour, 2 E. 
 a B. 678, 22 L. J. 456, Q. B., where a person engaged to enter into an em- 
 ployment in June, was held entitled to comn ence in May ar action against hi« 
 proposed employer for announcing his resolution not to employ him, is not in 
 reality inconsistent with this statement, since the defendant was held to liave 
 broken his contract by the refusal to employ the plaintiff. 
 
 I. And where the suit was brought notified of its completion, it was 
 the very day the work was comple- held premature. Smadbeck v. Sis- 
 ted, and the defendant had not been son, 31 Hun, 58'2.
 
 DIVISION OF ACTIONS. ii 
 
 2. Actions for Tort, or ex delicto 
 
 An action for tort is an action for a wrong inde- [9J 
 pendent of contract, {e) e.g., for an assault, imprison- 
 ment, fraudulentmisrepr esentation, &c. In other words, a 
 wrong or a tort is a violation by one person of an}^ of the 
 rights (<?. g., the right to personal liberty) possessed by 
 ?inother person independently of any agreement with the 
 'vrong-doer, and an action for a wrong or a tort is an 
 action on account of the violation of, or interference with, 
 such rights. (/) 
 
 Hence, to the maintenance of an action for tort, two 
 things are necessary. In the first place, there must exist 
 a " right " on the part of the plaintiff, independently of 
 any agreement between him and the defendant. This 
 corresponds to the right existing by contract, which 
 forms the basis of an action on contract. In the second 
 place, there must exist on the part of the defendant a 
 violation of, or interference with, this right of the plaintiff. 
 This corresponds with the breach of contract in an action 
 on contract. 
 
 Thus an action for an injury done to the plaintiff by 
 the careless driving of the defendant, depends upon the 
 right of the plaintiff (independently of any contract) not 
 to be injured by the negligence of the defendant, and 
 upon the violation of such right through the carelessness 
 of the defendant. 
 
 Incidents of Actions on Contract and Actions for Tort. 
 
 There are several leading distinctions (affecting the 
 choice of parties) between actions on contract and 
 actions for tort, which, though considered at length [10] 
 
 (e ) See C. L. P. Act. 1852, Sclied. 13. 
 
 (/) A right conferred by contract may be either a positive right, /. e., a 
 right to have a thing done, e. g., to have a house built — or a negative right, i. e., 
 to have something not Aonc.e.g., not to be hindered from passing over a cer- 
 tain ])iece of land: a right independent of contract is in almost every case a 
 negative right, f. ,^., not to tx- as-aullcfl. not to be defrauded, &.C.
 
 12 PARTIHS TO ACTIONS. 
 
 in different parts of this treatise, may be here pointed 
 out generally. 
 
 The chief of these differences arc as follows: — 
 I. No one can sue or be sued for the breach of a con- 
 tract who " is a stranger to the contract," or, as it is 
 sometimes expressed, " is not privy to the contract." 
 What is meant is, that the person to sue for the breach ot 
 a contract must be the person with whom the contract is 
 in the eve of the law made, and that no one can sue for 
 the breach of a contract not made with him, simply on 
 the ground that he is injured by the breach, {g) Any 
 person, on the other hand, who is injured by a wrongful 
 act, may bring an action for tort against the wrong-doer, 
 even though the injury be an indirect one, as where a 
 master is injured in consequence of an injury done to his 
 servant. (//)' The same act, moreover, may result in an 
 interference with the separate rights of an indefinite 
 number of persons, or in other words, be the cause oi 
 many torts, {i) e. g., the careless act of an engine-driver 
 may cause separate injuries or torts to an indefinite num- 
 ber of passengers. 
 
 From the fact that the same act may constitute a tort 
 to an indefinite number of persons, it follows that while 
 the person or persons to sue for a "breach of contract 
 must be a definite person or definite persons ascertainable 
 before the contract is broken, the number of persons who 
 may have sepai^ate rights of action against a wrong-doer 
 for the same tortious act is indefinite and unascertainable 
 
 before the commission of such act. 
 [ii] 2. In an action on contract, all the persons with 
 
 {g) Winterbottom v. Wright, lo M & W. 109 ; II L. J. 415, Ex., Rule lO. 
 
 {h) Compare Alton v. Midland Kail. Co., 19 C. B., N. S., 213 ; 34 L. J. 
 292, C. P. 
 
 [i) See Scott v. Shepherd, i Smith, L. C, 6th ed., 422-423, judgment of 
 Gould, J., " Whenever a man does an unlawful act he is answerable for all the 
 consequences." 
 
 I. Or where a servant is injured &c., R. R. Co. v. May, 108 111. 288 ; 
 in consequence of the negligence or road master; Atchison, &c., R. 
 of his master's foreman, Chicago, R. Co, v. Moore, 31 Kan. 197.
 
 DIVISION OF ACTIONS. 13 
 
 whom the contract is (in the eye of the law) made, should 
 join as plaintiffs, since A. can not recover damages for the 
 breach of a contract made with A. and B. 
 
 In an action for tort, on the other hand, it is frequently 
 a matter of choice whether the persons injured should 
 sue separately or jointly, and in any case the non-joinder 
 of a plaintiff is a matter of comparatively small impor 
 tance. For, if in such an action, where A. and B. ought 
 to sue jointly, A. sues alone, he may, it is true, be forced 
 (by a plea in abatement) to join B. with him. But if the 
 non-joiiider of B. is not objected to at the proper stage of 
 the proceedings before the trial. A., though it may appear 
 that B. ought to have been joined, will recover damages 
 in proportion to the injury which he himself has suffered, 
 and no objection can be taken to a subsequent action by 
 B. alone for the injury which B. has sustained, {k) 
 
 In other words, a contract with A. and B. jointly is a 
 different thing from a contract with A. alone, and it is an 
 answer to an action by A. that the contract sued upon 
 was a contract, not with A., but with A. and B. But an 
 injury to A. is no less an injury to him because it was an 
 injury to A. and B. jointly. Hence, if A. sues alone for 
 an injury, e. g., to the joint property of A. and B. (though 
 it may be possible by proper pleading to compel A. to 
 join B. with him as plaintiff), it is no answer to the action 
 by A. for the injury to him that the tort committed was a 
 tort against A. and B. jointly. (/) 
 
 3. In an action on contract, all the persons by whom 
 the contract was made should, properly speaking, be 
 joined as defendants, i. e., joint contractors should be sued 
 jointly for a breach of contract, and it is an error to sue 
 X. alone for the breach of a contract made by X. and Y. 
 jointly. The error is, however, of minor import- 
 ance, since, though the defendant, X., can by [12] 
 proper pleading {i. e., by a plea in abatement) com- 
 pel the plaintiff to make Y. a co-defendant, still, it the 
 objection be not taken at the proper stage of the proceed- 
 
 (k) Addison v. Overend. 6 T. R. 766 ; Sedgwortli v. Overeiid, 7 T. R. 279. 
 (/) See Chapter XXXIV., as to non-joiiidcr of plaintiffs.
 
 14 PARTIES TO ACTIONS. 
 
 ings before tlic trial, X. will be held liable on the joinl 
 contract of X. and Y. (w) 
 
 In an action for tort, no objection whatever can be 
 made to the non-joinder of a joint wrong-doer as defend- 
 ant. 
 
 In other words, joint contractors are jointly liable, but 
 a wrong-doer is always separately liable for his torts, 
 even though another person may be liable with him ; 
 hence, in an action against X. alone on a contract made 
 by X. and Y., it is an objection that the action ought to 
 have been brought against X. and Y. jointly. But to an 
 action for tort against X., it is no objection whatever that 
 the wrong complained of was committed by X. and Y. 
 jointl}-, since X. is none the less responsible for a tort 
 because Y. also happens to be responsible. 
 
 4. In an action on contract, the misjoinder of defend- 
 ants is, unless amended, a fatal error, i. e., a contract by 
 X. and Y. is a different contract from one by X. alone, 
 and if an action be brought against X, and Y., on a con- 
 tract made by X. onl}'^, the action will fail. 
 
 On the other hand, the misjoinder of defendants in an 
 action for tort is of small importance, i. e., if X. and Y. be 
 sued jointly for a tort committed by X. alone, a verdict 
 will be found against X., and in favor of Y., and it will be 
 no defense to X., that though he is guilty of a wrong, Y. 
 is not guilty, {n) 
 
 5. A woman is not liable for, and can not be sued on, 
 contracts made by her during coverture, and no person 
 is, as a general rule, responsible for or liable to be sued 
 
 on contracts made during infancy ; but married 
 
 [13] women and infants are in general responsible and 
 
 liable to be sued for torts committed by them, [o) 
 
 The distinction between an action on contract and an 
 
 action for tort is in itself clearly marked, but the distinction, 
 
 (w) Rice V. Shute, i Smith, L. C, 6th ed., 511. 
 
 («) For the effect of non-joinder, misjoinder, and the amendment of these 
 errors, see Chapter XXXIV. 
 
 {o) In the superior courts, in an action on contract, a verdic^ for more than 
 £20 carries costs ; but in an action for tort, a verdict for more than ;^io carries 
 costs. 30 & 31 Vict. c. 42, s. 5.
 
 DIVISION OF ACTIONS. 15 
 
 and the differences which follow from it, will not be 
 found to apply to all the actions which are counted under 
 the one or the other class. 
 
 This arises from the existence of certain actions, which 
 in form are actions on contract, but are not really brought 
 for the violation of rights conferred by contract ; and of 
 certain action? which in form are actions for tort, but are 
 not in reality brought for the violation of rights inde- 
 pendent of contract. The first class consists of actions 
 for the breach of what is called an " implied contract," 
 and which are sometimes termed actions " quasi ex con- 
 tractu." The second class consists of actions for what 
 are called "torts founded on contract." 
 
 There are onlv " two kinds of common law actions ; one 
 for injury to person or property, and the other for breacii 
 of contract. Now, the ordinary case of breach of contract 
 is where both parties have agreed to a certain thing, and 
 one breaks the promise which he has made. But for a 
 long time implied contracts have been admitted into the 
 law where a transaction having taken place between par- 
 ties, a state of things has arisen in reference to it which 
 was not contemplated by them, but is such that one party 
 ought in justice and fair dealing to pay a certain sum of 
 money to the other." if) The essence of an action 
 on an " implied contract " {q) is that it is brought [14] 
 on account not of any actual contract, but of some 
 transaction in virtue of which, though there has been no 
 contract between the parties, one party ought to pay 
 money to another as if there were a contract, whence the 
 action may be termed an action " quasi ex contractu," i. e., 
 " as it were on a contract." 
 
 (/) Per Martin, B., Freeman v. Jeffries. L. R , 4 Ex. 199 ; 3S L. J 
 121, Ex. ♦ 
 
 (q) The expression " implied contract " is u>ecl in several -enses. In the 
 sense in which the term " imjilied contract" is here used, an action on an im- 
 plied contract nearly corresponds with an action riuasi ex contractu, since that 
 term is employed in Roman law to denote certain actions which may be brought 
 where, as a matter of fact, there has been no contract lietween the parties, b 1 
 •> here a state of things has arisen in which the law considers one of tiiem boun I 
 ■«> the other in the same manner as if a contract had been ni.ide.
 
 i6 PARTIES TO ACTIONS. 
 
 One action cS this clnss is what is called " an action 
 for money had and received." 
 
 This is " a kind of equitable action to recover back 
 
 money which ought not in justice to be kept It 
 
 lies only for money which, ex a^quo et bono, the defend- 
 ant ought to refund It lies for money paid by 
 
 mistake, (r) or upon a consideration which happens to 
 fail, or for money got through imposition, express or im- 
 plied, or extortion, or oppression, or undue advantage 
 taken of the plaintiff's situation, contrary to laws made 
 for the protection of persons undci those circumstances. 
 In one word, the gist of this kind of action is, that the 
 defendant is obliged by ties of natural justice and equity 
 to refund the money." {s) 
 
 The action for money received, which is of a very 
 extensive character, and includes within it actions of very 
 different kinds, is sometimes in reality an action on con- 
 tract, since " contracts arising from agreement frequently 
 result in a receipt and holding of money by the defendant 
 for the use of the plaintiff, as for example, where the de- 
 fendant has been engaged by the plaintiff as agent to re- 
 ceive money, and to account for and pay ovv'ir the amount 
 received, and has received money by virtue of his em- 
 ployment, and he is, therefore, bound by the terms of his 
 engagement to pay over to the plaintiff the money 
 received ; but such money being in fact received 
 and held by him for the use of his employer, hi? 
 [15] liability may be concisely described as for nione} 
 received by the defendant for the use of the plain- 
 tiff, without entering into particulars of the contract 
 under which it was received." {t) 
 
 But it is more frequently an action " quasi ex con 
 tractu," and the supposed contract may be implied from 
 an infinite variety of circumstances which this is not thf 
 place to enumerate. 
 
 (r) Sc. a mistake of fact, Milnes v. Duncan, 6 B. & C. 671 ; Marriott T 
 flampton, 2 Smith, L. C, 6th ed., 388. 
 
 (s) Per Mansfield, C. J., Moses v. Macfarlane, 2 Burr. 1012. 
 {() Leake, Contracts, 47, 48.
 
 DIVISION OF ACTIONS. 17 
 
 The action may, lastly, depend on the existence of a 
 distinct tort, since, in many cases, a person, by wronging 
 whom a wrong-doer has gained money, may, if he prefers 
 it, instead of suing for the wrong committed, bring an 
 action for the money gained by the wrong, treating it as 
 money received to his use. Thus, " take the case of a 
 man selling the goods of another without authority, and 
 receiving the proceeds of such sale. The law allows the 
 party whose goods are so sold, to declare in an action for 
 wrongful conversion, or, at his election, to sue on the 
 implied promise to pay over the proceeds to him, though, 
 in truth, there was no such promise." {u) This is one of 
 the " cases in which the law has invented fictions to give 
 a more convenient remedy to the party wronged." {v) 
 
 In this and other instances, (j) the action, which is in 
 form an action on contract, and partakes of most of the 
 incidents proper to such an action, may be considered as 
 being in reality an action for tort, brought for conveni- 
 ence in the form of an action on contract. 
 
 The action also for " money paid " is, in many cases, 
 one quasi ex contractu. When, for instance, A. is com- 
 pelled to pay money which X. ought to have paid, A. 
 may, under some circumstances, sue X. for the 
 amount, as for money paid for X., though there is [16] 
 no real agreement by X. to repay the money, and 
 the action therefore can not, in substance, be considered 
 an action for breach of contract. 
 
 Where one party to an action has obtained a judgment 
 against another, he has a right, if he chooses, to bring an 
 action on the judgment for the money due. This right 
 arises from the existence not of a contract, but of a cir- 
 cumstance {sc, the recovery of a judgment), which en- 
 ables the plaintiff to sue the defendant as if there had 
 Deen a contract between them, i. e., it is a right quasi ex 
 contractu. 
 
 (u) Compare 34 I- J. 297, C. P. 
 
 (v) Alton V. Midl.niul Rail. Co., 19 C. B.. N. S. 241 ; 34 L. J. 292,0. P., 
 per WiLLES, J. See Lytbgoc v. Vernon, 5 H. & N. 160 ; 29 L. J. 164, Ex. 
 {y ) Hrcwcr v, .Sparrow, 7 B. & C. 310. 
 2
 
 i8 PARTIES TO ACTIONS. 
 
 " If a contract imposes a legal duty upon a party, the 
 neglect of that duty is a tort founded on contract, so 
 that an action ex contractu, for the breach of contract, 
 or an action ex delicto, for the breach of duty, may be 
 brought at the option of the plaintiff." (^) 
 
 " That there is a large class of cases in which the 
 foundation of the action springs out of the privity oi 
 contract between the part'.js, but in which, nevertheless, 
 the remedy for the breach or the non-performance is 
 indifferently either assumpsit {t. e., an action for breach 
 ot contract), or case upon tort, is not disputed. Such are 
 the actions against attorneys, surgeons, and other profes- 
 sional men for want of competent skill in the services 
 which they undertake to render ; actions against common 
 carriers, against shipowners on bills of lading, against 
 bailees of different descriptions, and in numerous other 
 cases in which the action is brougnt in tort or on con- 
 tract, at the election of the plaintiffs." {a) 
 
 Actions, therefore, for torts founded on contract, are 
 actions brought, not directly for a breach of contract, 
 but indirectly for a breach of duty, arising from the exis- 
 tence of a contract. As being for a breach of duty, they 
 are in form actions for tort. As being for the 
 [17] breach of a duty connected with a breach of a con- 
 tract, they partake of the character of actions on 
 contract. 
 
 It is clear that such actions must be in substance 
 (whatever their form) either actions ex delicto or actions 
 ex contractu. But some diversity of opinion has existed 
 on the question to which of these classes they belong, and 
 hence as to the further question by what rules they are to 
 be governed, or, in other words, whether the incidents of 
 actions on contract, or of actions for tort, rightly attach 
 to actions for torts founded on contract, {b) 
 
 " The word duty," it has been said, " is introduced 
 
 (z) Addison. Torts, 3rd ed., 13. 
 
 (a) Boorman v. Brown, il L. J. 439, Ex. (Ex. Ch.), per TiNDAL, C. J. 
 
 (b) In considering this question, il may be well to bear in mind that the 
 gi-eater number of such actions are actions against common carriers.
 
 DIVISION OF ACTIONS. 19 
 
 into this declaration [against ^ carrier for non-delivery], 
 but let us see what is meant by the defendant's duty 
 How did he undertake any duty except by his agreement 
 to carry and deliver the goods ? The duty of a servant 
 or the duty of an officer I understand, but the duty of a 
 carrier I do not understand, otherwise than as that duty 
 arises out of the contract. Suppose a man undertake to 
 supply me as a builder with timber and with other ma- 
 terials for building. He imposes on himself the duty ol 
 performing his contract, but no other duty ; and I may 
 maintain an action against him for a breach of the con 
 tract, which in that sense will be a breach of duty. 
 (<:)...! suppose there can be no doubt that if a 
 common carrier accepts goods to carry, and then dies, an 
 action will lie against his executors. How is that? Why, 
 because the action is founded on contract. But the form 
 of the action can not alter the nature of the transaction. 
 The form of the transaction is originally contract, and 
 the circumstance of an action lying against the executors 
 shows that it is so. How an action against the 
 carrier on the custom ever came to be considered [18] 
 an action in tort I do not understand, but it is so 
 considered." {d) 
 
 So, in an action (c) by a master against a railway com 
 pany, on account of an injury done to his servant when 
 being carried by the company, the master was held not 
 capable of suing, on account of the action being in sub- 
 stance an action on contract. In this case the law is thus 
 laid down: "The liability of the defendants in the case 
 before us is of the latter kind [/. e., toundcd on contract], 
 and falls within the principle of a seriesof decisions which 
 cave no room for doubt. The case does not . . . fall 
 within the principle C(jntcndcd for on the part of the 
 
 ic) "An action on the custom of llie realm against a common carrier is foi 
 a tort or for a supposed crime, and the plea is ' not Ruilty ;' therefore, at com- 
 mon law the action will not lie against the carrier's executors, hut an action of 
 assump^^it will lie against them on the very same cause." Williams, Executors. 
 6th cd., 1598, citinc; Cowp. 375. See further. Chapter XVIII., f)Ost. 
 
 (</) Powell V. I.ayton, 2 N. R. 367, 370. per Sir J. Mansiiki.d, C. J. 
 
 (>■) Alton V Mi.lirnul I< r,ii <•„, ,,, c. H.. N. S. 213 ; 34 L. J. 292, C. P.
 
 20 PARTIES TO ACTIONS. 
 
 plaintitts, lor this simple reason — because the rights 
 founded on contract belong to the person who stipulated 
 for them. Here the right to be carried safely was stipu- 
 lated for bv the servant. It was a right acquired by him 
 by reason of a bargain of the defendants. (/) . . . 
 This is a case in which there would have been no duty 
 but for the contract to carry safely in consideration of a 
 ceitain payment. The passenger purchases the duty 
 which the law says arises out of the contract, and has his 
 election to sue upon the contract, or for the breach of the 
 duty founded on the contract. (^) .... It has been 
 strongly, but .... erroneously, urged, that the 
 cause of action here is founded on a wrong. The law 
 does not so deal with it ; it gives the right to sue in form 
 either in tort or contract, at the party's election." ih) 
 
 But though in numerous cases (?) actions for torts 
 founded on contract have been considered as essentially 
 actions on contract, they have also been treated as actions 
 for tort. 
 
 " Ever since Pozzi v. Shipton, {k) the action 
 [19] against common carriers on the custom has been 
 considered an action strictly of tort." (/) 
 
 " It seems to me " (it has been said in another case), 
 '* that the whole current of authorities, beginning with 
 Govett V. Radnidge, {in) and ending with Pozzi v. Ship- 
 ton, establish that an action of this sort " [i. e., against 
 carriers for negligence] " is in substance not an action on 
 contract, but an action of tort against the company as 
 carriers." («) Hence, in the case from which the quota- 
 tion is taken, (<?) a servant was held entitled to sue for the 
 
 (/) Ibid., 19 C. B., N. S. 239, 240, per Willes, J. 
 
 Ig) Ibid., 241, Judgment of WiLLES, J. 
 
 (h) Ibid., 240, per WiLLES, J. 
 
 (?) See, in favor of this view, Marzetti v. Williams, i B. & Ad. 415 ; Win- 
 terbottom v. Wright, 10 M. & W. 109, ir L. J. 47, Ex. ; Toliit v. Shenstone, 5 
 M. & W. 283. 
 
 ik) 8 A. & E. 963. 
 
 (/) Tattan V. G. W. Rail. Co., 29 I.. J. 186, Q. B., per Crompt. n, J. 
 
 (tn) 3 East, 62. 
 
 («) Marshall v. York, Xewcastle and Berwick Rail. Co., 11 C. B. 663, pe* 
 Williams, J. 
 
 (o\ II C. B. 655 ; 21 L. J. 34, C. F.
 
 DIVISION OF ACTIONS. 21 
 
 loss of his luggage, though the contract for its carriage 
 was with his master, and he, therefore, had the actioti 
 been held to be on contract, could not have sued ; (/) and 
 in a subsequent case, it is said by Blackburn, J., " 1 
 think that what is said in the case of Marshall v. York. 
 Newcastle and BerAvick Railway Company was quite 
 correct, and that the right which a passenger by railway 
 has to be carried safely does not depend on his having 
 made a contract, but that the fact of his being a passenger 
 casts a dutv on the company to carry him safely." {q) 
 
 The difference of opinion which exists amongst equally 
 high authorities is less than it might at first sight appear. 
 Actions against common carriers have been thought an 
 admitted exception to ordinary rules, and the matter in 
 dispute will generally be found to be, not what is the 
 true nature of torts founded on contract, but whether in 
 a given case, e. g., an action against a railway company 
 for negligence, the ground of the action was in any sense 
 the contract. 
 
 In spite of conflicting decisions, the doctrine laid [20] 
 down by Sir J. Mansfield, C. J., is (it is submitted) 
 in theory correct. Actions for torts founded on contract, 
 though in form actions for tort, are in reality actions for 
 breach of contract. They owe their existence to the fact, 
 that for technical reasons (some of which still exist (r)) de- 
 clarations \vere often framed in tort where the real cause 
 of action was the breach of a contract, {s) 
 
 A plaintiff has often a choice of suing either on con- 
 tract or for tort. 
 
 Sometimes the act of the defendant may amount at 
 once to a breach of contract and to a tort. 
 
 M(.)re frequently the plaintiff's choice arises from the 
 fact that a party aggrieved may treat what is really a 
 wrong as a breach of an ini[»lied contract, or what is in 
 
 (p) Kule 10. Compare, as a;^recing with tliis view, Martin v. Great 
 {ndian Rail. Co., L. R. 3 Kx. 9 ; 37 L. J. 27, Ex. 
 
 {q) Austin v. G. W. Kail. Co., L. R.. 2 Q. IJ. 447 ; S*"' I- J- 202, Q. U. 
 
 (r) See nitU. 
 
 (s) lUillcn, I'lcadings, 3rd cd., 273.
 
 22 PARTIES TO ACTIONS. 
 
 reality a breach of contract as a wrong founded on con- 
 tract. 
 
 A person, for example, whose goods have been wrong- 
 fully sold may either sue for the tort, in an action ol 
 trover, (/) or, if he pleases, claim the amount received for 
 the sale as a debt for money received for his use ; and a 
 person whose goods have not been delivered by a carrier 
 may sue the carrier either for a breach of the agreement 
 to deliver, t. e., on contract, or for neglect of the duty to 
 carry the goods safely, z. e., for tort. 
 
 When the act complained of is one which enables the 
 plaintiff to sue either for breach of contract or for tort, he 
 can treat the same act in one count of the declaration as 
 a breach of contract and in another count as a tort. 
 
 The mode in which an action is brought can not affect 
 the substantial legal rights of the parties, {zi) but may 
 nevertheless have important effects. 
 
 First. A plaintiff who treats a tort as if it were a 
 
 breach of contract exposes himself to the disadvan- 
 
 [21] tages of suing on contract, e. £;:, he is liable to a 
 
 plea of set-off, (zv) and can not obtain costs {x) unless 
 
 he recovers more than ;^2o. 
 
 Secondly. A plaintiff who treats a breach of contract 
 as if it were a wrong, though he may gain some advan- 
 tages of procedure, e. g., exclude a plea of set-off, and 
 perhaps gain costs on a verdict for any sum above £iOy 
 (y) can not (it would seem) change the substantial rights 
 of the parties, e. g., he can not make an infant or married 
 woman liable on a contract by treating the breach ot 
 contract as a tort. {2) 
 
 While, in short, a plaintiflf can, by varying the mode 
 in which an action is brought, affect points of proce- 
 
 {t) Lythgoe v. Vernon, 5 H. & N. 180 ; 29 L. J. 164, Ex. 
 
 (m) Alton V. Midland Rail. Co., 19 C. B., N. S., 241 ; 34 L. J. 292, C. P. 
 
 (w) See Leake, Contracts, 48. 
 
 {x) Tattan v. G. W. Rail. Co., 29 L. J, 184, Q. B. 
 
 (j) It maybe questioned whether this is so under the late Act (30 & 31 
 Vict. c. 142). 
 
 (2) Wright V. Leonard, 30 L. J. 365, C. P. : i C. B., N. S., 258. See as to 
 infants. Chapter XXIX. ; as to married women, Chapter XXX.
 
 DIVISION OF ACTIONS. 23 
 
 dure, he can not affect the substantial rights of the 
 parties, {a) 
 
 The law as to the plaintiff's election is thus stated by 
 
 WiLLES, J. {b) :— 
 
 " Election, it must be admitted, is purely technical, 
 and was intended to give the party a more convenient 
 and compendious remedy. If traced to its origin, there 
 would be found many instances to prove that. I may 
 mention a few of them. First, I will start with the doc- 
 trine of implied promises, because whether the law raises 
 a duty or implies a promise which the parties did not 
 stipulate for, is all one. Take the case of a contract with 
 various stipulations, as in a building contract ; and take it 
 that the contract is only partly completed, without any 
 default on the part of the builder. Certain of the work 
 has been done and certain materials supplied : the law 
 gives the builder his election to declare upon the 
 special contract, or he may say that he has done [22] 
 the work and supplied the materials, and that the 
 defendant promised to pay him the value on request. 
 That was the state of the law when the case of Bretherton 
 V. Wood (6 J. B. Moore, 141 ; 9 Price, 408 ; 3 Brod. & B. 
 54), and the other cases rehed on, were decided. But no 
 one would contend that the change in the mode of declar- 
 ing would affect the legal rights of the parties. That is 
 one instance where an election is given in the mode of 
 procedure. 1 might travel through an infinite series of 
 legal fictions. Take the case of a man selling the goods 
 of another without his authority. The law allows the 
 partv whose goods are so sold to declare in an action for 
 the wrongful conversion, or at his election, to sue on the 
 implied promise to pay over the proceeds to him, though 
 in truth there was no such promise. These are cases in 
 which the law has invented fictions to give a more con- 
 
 ia) As to this point, compare Alton v. Midland Rail Co., lo C. B., N. S., 
 i;3, 34 I-. J. 2g2, C. P.; Marshall v. York, Newcaslle. and i'.erwick Rail. Co., 
 II C. B. 655 ; 21 L. J. 34, C. P. ; and Martin v. Great Indian Rail. Co., L. R. 
 » Ex. 9, 37 L.J. 27. Ex. 
 
 ,^) Al:on V. Midland Rail. Co., 19 C. B., N. S., 240, 241.
 
 24 PART IRS TO ACTIONS. 
 
 vcniont rcnicdv to tlic part.v wroiii^cd. In the last case 
 you have an instance of an election which is cloi^ged in 
 this way ; if the plaintiff chooses to bring an action for 
 money had and received, he subjects himself to all the 
 consequences of the defendants being let in to plead a set- 
 off, infancy, and the like." 
 
 Actions Avere originally divided into certain " kinds," 
 or, as they are called, " forms " (r) of action. Thus an 
 action for a breach of covenant belongs to one form {sc. 
 covenant), for the breach of a contract not under seal to 
 another {sc. assumpsit), for an assault to a third {sc. tres- 
 pass), and so forth. 
 
 The distinction between forms of action used to be 
 essential, since the form of each action was mentioned in 
 the writ, and it was necessary that all the causes of action 
 for which a plaintiff sued in one and the same action 
 should belong to the same form, e. g., a declaration might 
 contain any number of counts for different breaches of 
 covenant, but could not contain one count for the breach 
 of a covenant (/. e., a contract under seal), and 
 [23] another count for the breach of any contract not a 
 covenant. 
 
 Now that no form or cause of action is mentioned in 
 the writ, id) and different causes of action may be com- 
 bined in the same declaration, {e) forms of action may be 
 considered practically abolished. But it is still essential, 
 with a view to understand the rules as to parties, to bear 
 in mind the distinction between different forms. 
 
 These forms may be considered (/) as subdivisions or 
 species of the two classes of actions on contract and act- 
 ions for tort respectively. 
 
 (<•) See ante. 
 
 (d) C. L. P. Act, 1S52, s. 3. 
 
 ie) Ibid., s. 41. 
 
 (/) They may be so considered for convenience ; but tlie division o^ actions 
 into forms existing earlier than, and independently of the division into actiors 
 ex contractu and actions ex delicto. Case origina-lly included assumpsit, trover 
 was considered a species of case, and detinue was held for some purposes an 
 action ex contractu. 3 Steph. Com., 6th ed., 385 n. (c). Danby v. Lamb, 11 C 
 B., N. S., 427.
 
 DIVISION OF ACTIONS. 25 
 
 The forms of actions are • — 
 
 1. Debt '] 
 
 2. Covenant Y on contract 
 
 3. Assumpsit J 
 
 4. Trespass 
 
 5. Trespass on the case 
 
 6. Trover 
 » 7. Detinue 
 
 8. Replevin 
 
 for tort. 
 
 Of the above eight forms three belong to actions ex 
 contractu, five to actions ex delicto. 
 
 " Debt" lies where a person claims the recovery of a 
 debt, i. e., a. liquidated or certain sum of money alleged to 
 be due to him, and is generally founded on some contract 
 alleged to have taken place between the parties, or on 
 some matter of fact from which the law will imply a con- 
 tract between them, (^) 
 
 "Covenant" lies where a party claims damages [24J 
 for a breach of covenant, /. e., of a promise under 
 seal, {/i) 
 
 " Assumpsit " lies where a party claims damages for a 
 breach of a simple contract, ?. e., a promise not under 
 seal. 
 
 " Trespass " lies where a party claims damages for a 
 trespass committed upon him, u e., for an injury of a 
 direct and immediate kind committed on the person, or 
 tangible and corporeal property of the plaintiff. 
 
 " Case " (or " Trespass on the case ") lies where a 
 party claims damages for any wrong not included under 
 the head of trespass. 
 
 Case includes under it the greater number of torts, 
 €. g., torts arising from negligence, fraud, is.c. 
 
 ig) Stephen, Ple.nHng, 6tli ed., l6. Assumpsit could never be maint.iincd 
 where covenant could, and vice versa ; but debt could sometimes be brout^ht 
 where covenant could also be brou^^ht. Assumpsit will lie Ihout^h debt lie* 
 also. Com. Dig., Action ujion the Case upon assumpsit, C, 
 
 (/4) See previous note.
 
 20 PARTIES TO ACTJONS. 
 
 As distinguished tVoin trespass it lies for an indirect, 
 as contrasted with a direct and immediate injury, {i) But 
 the distinction between the one Ibrm and the other is in 
 many cases very fine, and there are instances wherein 
 both or either trespass or case will lie. (j) 
 
 " Trover" lies where the plaintiff sues for damages for 
 an interference with his right to possession of specific 
 goods and chattels. Such interference is technically 
 called " conversion." 
 
 " Detinue " lies where the plaintiff claims to recover 
 specific goods or chattels wrongfully detained by the de- 
 fendant. 
 
 This action differs in practice little from trover, {k) 
 
 The chief differences are, that a plaintiff can in an 
 action for detinue obtain the return of the goods, 
 (_25 I (/) and that the gist of detinue is the wrongful de- 
 tainer of the goods, {in) and of trover the wrongful 
 dealing with them. 
 
 " Replevin " lies where goods have been wrongfully 
 distrained, and occasionally where they have been wrong- 
 fully taken, though not as a distress, {n) 
 
 (B) Local and Transitory Actions. 
 
 Actions are further divided uito " local " actions and 
 " transitory " actions. 
 
 A local action is one which necessarily depends on 
 local matters, such as the breaking into a house, the 
 
 {i) Scott V. Shepherd, i Smith L. C, 6th ed., 419 
 
 (/) Ibid., 423, and general notes to this case. Case has been defined as an 
 action for any wrong or cause of complaint to which covenant or trespass do 
 not apply. Stephen, Pleading, 6th ed., 617. This definition must apply to case 
 in its original sense, in which it included asisumpsit. 
 
 {k) Mockford v. Taylor. 19 C. B., N. S., 209 ; 34 L. J. 352, C. P 
 
 (/) C. L. P. Act, 1854, s. 78 ; and Day, Procedure Acts, 3rd ed., 773. 
 
 (w) Selwyn, N. P., 13th ed.; 583. 
 
 («) Mellor V. Leather, i E. & B. 619, 22 L. J. 76, M. C. ; Mennie v. Blake. 
 25 L. J. 399, Q. B. The action of ejectment is treated of separately. The 
 action of account is so rarely brought as to be practically obsolete. See Selwyn 
 N. P., Account, 13th ed., i. It is not the aim of this treatise to treat of the 
 action of writ of right of dower, dower, and quare impcdit.
 
 DIVISION OF ACTIONS. 27 
 
 diversion of a stream, and generally injuries to rea. 
 property which must happen in a particular place. 
 
 A transitory action is one which depends on transitory 
 matters, such as the making and breach of a contract, or 
 an assault to the person, which might happen as well in 
 one place as in another. {0) 
 
 As a general rule, actions for wrongs in respect of 
 land are local ; and other actions, e. g., for breach of con- 
 tract or for wrongs not connected with real property, are 
 transitory. 
 
 A local action must be tried in the county m which 
 the cause of action arose. 
 
 A transitory action may be tried in any county [26J 
 whatever at the option of the plaintiff. 
 
 *Hence a local action can not be tried in our courts 
 where the matters complained of took place beyond their 
 jurisdiction, i. e., beyond the limits of England, Wales, 
 and Berwick-upon-Tweed. (/) 
 
 A transitory action can be tried in our courts whether 
 the cause of action arose within or without the jurisdic- 
 tion, {q) 
 
 {o) Mostyn v. Fabrigas, notes, I Smith L. C, 6th ed., 649 ; Bullen, Pleadings, 
 jrd ed., 2. 
 
 More accurately, perhaps, a local action is one which arises from some in- 
 fringement of a right which must, if committed at all, be comitted at a particu- 
 lar place. A transitory action is one which arises from some infringement 
 of a right which may, from its nature, be committed at any place whatever. 
 See, as to the effect of this distinction, Chapter III. 
 
 (p) See further, /cj'/. 
 
 {q) Actions for damages and actions for debt. Another way of regarding 
 actions is as actions for damages and actions for debt. 
 
 Under the head of actions for damages come all actions for tort, and all those 
 actions on contract in which anything is claimed beyond a fi.xed and definite sum 
 of money. 
 
 It is plain, that in an action for wrong, what is sought to be recovered is an 
 indefinite sum, viz., such damages as the jury think fair compensation to the 
 party aggrieved, ^.f., assaulted or slandered. It is equally plain that in some 
 actions for breach of contract, what is sought to be recovered is a definite sum 
 or debt, as, for example, where A. lends B. £20, and demands, simply and solely, 
 its repayment ; whilst, in others, what is sought for is an indefinite sum or 
 damages, e.g., where an action is brought for the non-delivery of goods, where 
 the plaintiff of course seeks compensation for tiie damage which he has suffered 
 by the non-delivery of the good^. 
 
 It is sometimes, however, not easy to decide at first siglit whether an action
 
 28 PARTIES TO ACTIONS. 
 
 is brought to recover a liquidalcil ilemaiul, i. <r., a debt, or an unliquulalcd de- 
 rnaiuU »'. e., damages. Thus, an action for a sum due on a bill of exchange is one 
 for a liquidated demand or debt ; but if there be added to this demand a further 
 claim for the expense of noting, the action becomes an action for an unliquida- 
 ted demand or damages (Rogers v. Hunt, 24 L. J. 23, Ex. ; lo Ex. 474). 
 
 The following, for example, are all claims for debts or liquidated damages, 
 viz ; — 
 
 Claims under the common indebitatus counts, e.g., for money paid or money 
 lent. 
 
 Claims for a sum certain due on a bond or covenant. 
 
 Claims for liquidated damages under a covenant or agreement. 
 
 The following, on the other hand, are claims for unliquidated damages 
 viz. : — 
 
 A claim for noting a bill of exchange (Rogers v. Hunt, 24 L. J. 23, Ex. ; lO 
 Ex. 474]. 
 
 Claims under a guarantee (Williams v. Flight, 2 Dowl., N. S., ii ; Atwool v. 
 Atwool, 2 E. & B. 23 ; 22 L. J. 2S7, Q. B. But compare Brown v. Tibbets, 31 
 
 L. J. 206, C. P. ; II C. B., N. S. 855). 
 [27] A claim for not accepting a bill of exchange (Hutchinson v. Reed, 2 
 
 Camp. 229). 
 
 A claim for damage from delaying a ship (Seeger v. Duthie, 8 C. B., N., S., 
 72 ; 30 L. J. 65, C. P.). 
 
 Claims upon a non-adjusted policy (Beckwith v. Bullen, 8 E. & B. 6S3; 27 
 L. J. 163. Q. B.). 
 
 A claim for the value of goods lost (Meyer v. Dresser, 33 L. J. 289, C. P., 
 t6 C. B., N. S., 646). 
 
 The test by which to ascertain the nature of any claim is to consider what 
 is the point to be decided by the jury. If all they have to decide is, first, was 
 there a contract between the plaintiff and the defendant? secondly, what was 
 il^e contract between the plaintiff and the defendant? and, thirdly, has it been 
 broken ? then the action is brought for a liquidated demand or debt. Thus, 
 whe'-e the plnintiff claims the price of goods sold, the sole questions for the 
 juiy are — first, did the defendant buy the goods ? secondly, at what price were 
 the goods sold, i.e., what was the contract? and, thirdly, have they been paid 
 for or not, i.e., has the contract been broken ? The action !s, therefore, for a 
 liquidated demand or debt. 
 
 If the jury would have to decide, in addition to the three points already 
 mentioned, the following fourth point, i. e., what damage has the plaintiff 
 suffered by the breach of contract ? then the action is one for an unliquidated 
 demand or damages. Thus, where the action is for the non-delivery of goods, 
 the jury must consider — first, was there a contract ? secondly, what was the 
 contract? thirdly, were the goods delivered or not, i. e., was the contract 
 broken? and fourthly, what damage did the plaintiff suffer by the breach? 
 (Rogers v. Hunt, 24 L. J. 33, Ex., and 10 Ex., 474; Ilodsall v. Baxter, 28 L. 
 J. 61, Q. B. ; Hall v. Scotson, 23 L. J. 85, Ex., 9 Exch. ^38). The action is, 
 therefore, for an unliquidated demand or damages. 
 
 Several results of practical importance depend upon the distinction between 
 actions for debt and actions for damages. The only result which need be 
 noticed here is its effects upon the right of " set-off." 
 
 If X. is indebted to A. in £10, and A. is indebted lo X. in £10, or more, 
 and A. sues X. for the £10 which he owes him, X. can set off the debt which 
 A. owes him against the debt \\hich he owes A. ; and can, by so doing, ac-
 
 DIVISION OF ACTIONS. 2g 
 
 cording to the imount of the respective deljts, either defend himself from an 
 action at the suit of A., or else reduce the amount recovered by A. 
 
 But it is a rule of law, that only debts (/. e., liquidated claims) can be set-off 
 against debts. 
 
 Neither can one claim for unliquidated damages be set-off against another, 
 oor can a debt be set-off against a claim for unliquidated damages.
 
 30 PARTIES TO ACTIONS 
 
 CHAPTER III. 
 
 GENERAL RULES APPLICABLE TO ALL ACTK *NSs 
 
 Rule 2. — No action can be brought except for 
 the infringement of a right. 
 
 As the ground of an action is always an interference 
 with some right of the person aggrieved, every plaintiff 
 must, in order to support his case, prove that his rights 
 have been interfered with, by showing that the defendant 
 has by his acts or omissions either broken a contract 
 made with the plaintiff, /. e., violated a right which the 
 plaintiff had acquired by agreement with the defendant, 
 or interfered with some right of the plaintiff, existing in- 
 dependently of any contract. 
 
 No man can support an action simply on the ground 
 that he suffers damage from another's conduct. It con- 
 stantly happens that acts which are popularly called in- 
 jurious, because they occasion damage to a particular 
 person, do not enable that person to sue, because they do 
 not amount to an interference with his rights, and do not, 
 therefore, constitute what in the legal sense of the term is 
 an " injury." (a) On the other hand, when a man can sue 
 because he suffers a damage, the cause of action is not, 
 strictly speaking, the damage, but the interference with 
 
 his right. This is expressed in technical language 
 [29] by the maxim, that " damage without injury is never 
 
 a cause of action." 
 
 (li) The word " injury " has at least three senses. It means in common 
 parlance any damage done by one person to another. It means in legal lan- 
 guage either any interference with, or infringement upon, a right of any des- 
 cription -rthatever. or, secondly, an interference with a particular class of rights 
 which exist independently of a contract. In its last sense the word is synony- 
 mous with a wrong or a tort.
 
 GENERAL RULES. 31 
 
 The rule itself is perfectly clear, and needs to be borne 
 in mind, not only in determining whether a given person 
 has any right of action, but also, frequently, in ascertain- 
 ing by which of two persons a wrong-doer ought to be 
 sued ; since it often happens that a wrongful act, which 
 causes substantial damage to A., itifringes upon the rights, 
 not of A., but of B., who perhaps may be little damaged. 
 Under such circumstances an action in the name of A. 
 will fail, whilst an action in the name of B, will succeed, {p) 
 
 It is often difficult to decide whether a person who 
 has been damaged has or has not suffered an injury. The 
 nature and application of the rule are best seen from 
 examples. 
 
 Many kinds of damage are clearly not injurious. 
 
 " If a school be set up in the same town where an 
 ancient school has been time out of mind, by which the 
 old school receives dam ige, yet no action lies. So, if I 
 retain a master in my house to instruct my children, 
 though it may be to the damage of the common master, 
 yet no action lies. 
 
 " If I throw out windows in my house, which overlook 
 my neighbor's house, and break in upon that privacy 
 which he before enjoyed, no action lies." {c) So, no one 
 can sue for mere damage to the prospect of view from his 
 dwelling, {d) or for an interference with the current of air 
 to his mill, ie) Nor has any one an absolute right to sup- 
 port from a house adjoining his own ; (/) though the 
 question what right, if any, the owner of a house 
 has to support from the adjoining houses is not [30] 
 completely settled. 
 
 , It is, again, a damage for any one to be made defendant 
 in an action without reason. Yet, if X., mistaking A. for 
 
 {b) See. e. g.. Mill v. Tiipper, 2 H. & C. 121, 32 L. J. 217, Ex., noticed 
 post. See Chapter XIX. for cases where an action of trespass should be 
 brought in the name of a tenant, though really on behalf of a landlord. 
 
 {c) I'lacon, Abr., Actions, H. 
 
 {d ) Aldred's case, g Coke, 5S b. 
 
 {f) Webb V. Bird, 10 C. B., N. S., 208 ; 30 L. J. 28^, C. 1'. ; 10 C. 11.. N. S 
 841 ; 31 F-. J. 245. C. W, Ex. Ch. 
 
 (/) .Solomon V. Vintners' Co., 4 II. & N. 5S5 ; 28 I.. J. 370. Ex.
 
 32 PARTIES TO ACTIONS: 
 
 B., serves a writ upon him, ami follows up the action 
 against him, A., though he has a good defense, and can 
 recover costs, has no rcmcdv against X. for the incon- 
 venience to which he has been put, provided the proceed- 
 ings have been adopted purely through mistake ; for 
 though damage may have resulted to him, it is damnum 
 absque injuria, and no action lies. Indeed, every defend- 
 ant against wh(3m an action is unnecessarily brought, 
 experiences some damage or inconvenience beyond what 
 costs compensate him for, and 3'et has no remedy, {g) 
 
 It can not, however, be absolutely laid down that a 
 person may never sue another for having brought an 
 action against him. " That an action may be brought 
 under such circumstances as to render it morally wrong 
 and injurious in fact is certain, though the authorities 
 leave it in doubt wnethcr under any circumstances the 
 person so sued can recover damages for the vexation and 
 annoyance caused to him by the false suit," {h) i. e., 
 whether he can treat it as an injury. 
 
 Defamatory statements are in general actionable when 
 they cause damage, and are frequently so when they do 
 not cause any damage. Yet, even when most damaging, 
 they are under many circumstances not to be esteemed 
 injuries. 
 
 Thus, no true assertion, however damaging or defama- 
 tory in its character, can, whether made in w"riting or by 
 word of mouth, give a cause of action (z) to the per- 
 [31] son damaged ; since the publisher of the libel, or 
 the utterer of the slander, can always defend himself 
 in an action at laAv by proving the truth of the assertion 
 complained of. 
 
 Nor are defamatory statements, even when untrue, 
 always actionable, though causing damage to the person 
 of whom they are written or spoken. For such state 
 
 (,f ) See Davies v. Jenkins, ii M. & W. 756, judgment of RoLFE, B. 
 
 {h) Wren v. Weild, L. R. 4, Q. B. 730, 735, judgment of Blackbu in, J. 
 The authorities are reviewed in this judgment. 
 
 {i) It may, however, under some circumstances be tlie subject of m in- 
 dictment.
 
 GENERAL RULES. 33 
 
 merits are often privileged, /. e., made under circum- 
 stances such as to exempt the person making them from 
 liability to be sued. They may be privileged on various 
 grounds, as for instance, that they are made bona fide in 
 the assertion of a right, or the performance of a duty ; {k) 
 that they are fair criticisms on matters of public interest ; 
 (/) that they are words pertinent to the matter in issue, 
 spoken by an attorney or advocate in the course of a judi- 
 cial proceeding, {m) or by a witness in giving his evidence, 
 or are a fair report of proceedings in a trial, or of a debate 
 in parliament. {0) The point to be here noticed is, that 
 privileged statements, whenever they cause damage, 
 afford an example of damage without injury. (/) ' 
 
 (k) Whiteley v. Adams, "=; C. B., N. S., 392 ; 33 L. J. 89, C. P. ; Cowles v. 
 Potts, 34 L. J. 247, Q. B. 
 
 (/) Campbell v. Spottiswoode, 32 L. J. 185, Q. B. ; 3 B. & S. 769. 
 
 {m) Mackay v. Ford, 5 H. & N. 792 ; 29 L. J. 404, Ex. ; Revis v. Smith, 18 
 C. B. 129 ; 25 L. J. 195, C. B. ; Henderson v. Broomhead, 4 H. & N. 569 ; 28 
 L. J. 360, Ex. 
 
 (p) Wason V. Walter, L. R. 4, Q. B. 73 ; 38 L. J. 34, Q. B. 
 
 (/) See notes to Ashhy v. White, I Smith, L. C, 6th ed., 258, 259; 
 Dawkins v. Lord Paget, L. R. 5, Q. B. 94. 
 
 I. The liability of a corporation defendants pleaded the general 
 
 as party defendant in an action for issue. On the trial of the cause, it 
 
 slander, and the application of the appeared that, in 1854, the presi- 
 
 doctrines of privileged communica- dent and directors, then in charge 
 
 lions to such party, are well stated of the affairs of the defendants, in- 
 
 by Mr. Justice Campbell, in Phila- stituted an inquiry into the adinin- 
 
 delphia, &c,, R. R. Co. v. Quigley, istration and management of a 
 
 21 How. 202, as follows: person who had been the superin- 
 
 " The plaintiff, Quigley, a citizen tendent of their railroad for ten 
 of Delaware, complained of the de- years. Among other subjects, the 
 fendants ' a body corporate in the nature of his connection and deal- 
 state of Maryland, by a law of the ings with the plaintiff, who had 
 general assembly of Maryland, for likewise been in the service of the 
 the publication of a libel by them, corporation as ' general foreman of 
 in which his capacity and skill as a all their carpenters,' engaged the 
 mechanic and builder of depots, attention of the committee of inves- 
 bridges, station-houses, and other ligation, 
 
 structures for railroad companies "The president of the company, 
 
 had been falsely and maliciously who conducted this inquiry before 
 
 disparaged and undervalued. The this committee on behalf of the cor- 
 8
 
 34 
 
 PARTIES TO ACTIONS. 
 
 In the forci;()in<;- instances the person damaged has 
 clearly not been injured, i. c, has not suffered an inter- 
 icrencc with liis rijj^hts. The following examples illus- 
 
 poration, seems to have been con- 
 vinced that the superintendent had 
 exhibited partiahty for the plaintiff, 
 and had allowed him extravagant 
 compensation for service, and the 
 privilege of free transit over the 
 road for himself, his wc-kmen, and 
 freight, to the detriment of the com- 
 pany, and in breach of his duty as 
 supermtendent. The superintend- 
 ent defended himself against these 
 and other imputations, and pro- 
 duced testimony to the skill and 
 fidelity of the plaintiff while in the 
 service of the company ; also, to the 
 value of his services, and to the 
 effect that no unusual or improper 
 favor had been extended to him. 
 The president of the company, in 
 the course of the investigation, ad- 
 dressed a letter to an architect, who 
 had some acquaintance with the 
 plaintiff, to request his opinion of 
 his skill as a mechanic, and whether 
 the services of the plaintiff could 
 have had any peculiar value to a 
 railroad company. The reply of 
 this architect was very pointed and 
 depreciative of the plaintiff, affirm- 
 ing that ' he was not entitled to 
 rank as a third-rate workman,' and 
 ' was unable to make the simplest 
 geometrical calculations.' All the 
 testimony collected by the com- 
 mittee, as produced by the superin- 
 tendent, was carefully reduced to 
 writing, and printed ; first, for the 
 use of the president and directors, 
 and afterwards was submitted to the 
 company, at their meeting, on the 
 
 8th of January, 1855, with a report, 
 which exonerated in a great meas- 
 ure the superintendent from any 
 malpractice in consequence of his 
 relations with the plaintiff. The 
 investigation was searching, and 
 testimony, which, with the report 
 of the committee, fills two printed 
 volumes, was submitted to the com- 
 pany. The letter of the architect, 
 in answer to the letter of the presi- 
 dent, is printed in one of these 
 volumes, and this publication is the 
 libel complained of. Several of the 
 directors testify that they were not 
 aware of the publication, and evi- 
 dence was adduced that the plain- 
 tiff had declared that the investiga- 
 tion had resulted in increasing his 
 business. A verdict was returned 
 in favor of the plaintiff. The de- 
 fendants are a company incorpor- 
 ated by the legislatures of Delaware 
 and Pennsylvania, as well as of 
 Maryland, to construct a railroad 
 to connect the three cities which 
 contribute to form its name, and a 
 portion of their directors and stock- 
 holders are citizens of Delaware. 
 "The defendants contend that 
 they are not liable to be sued in 
 this action ; that theirs is a railroad 
 corporation, with defined and limi- 
 ted faculties and powers, and having 
 only such incidental authority as is 
 necessary to the full exercise of the 
 faculties and powers granted by 
 their charter ; that, being a mere 
 legal entity, they are incapable of 
 malice, and that malice is a neces-
 
 GENERA L R ULES. 
 
 35 
 
 trate the difficulty which may arise in determining 
 whether a person damaged has or has not been injured 
 A., the plaintiff, was the lessee of mines, the defendants 
 
 sary ingredient in a libel ; that this 
 action should have been instituted 
 against the natural persons who 
 were concerned in the publication 
 of the libel. To support this argu- 
 ment, we should be required to 
 concede that a corporate body 
 could only act within the limits and 
 according to the faculties deter- 
 mined by the act of incorporation, 
 and therefore th it no crime or of- 
 fence can be imputed to it. That 
 although illegal acts might be com- 
 mitted for the benefit or within the 
 service of the corporation, and to 
 accompli/h objects for which it was 
 created by the direction of their 
 dominant body, that such acts, not 
 being contemplated by the charter, 
 must be referred to the rational 
 and sensible agents who performed 
 them, and the whole responsibility 
 must be limited to those agents, 
 and we should be forced, as a legiti- 
 mate consequence, to conclude that 
 no action ex delicto or indictment 
 will lie against a corporation for any 
 misfeasance. But this conclusion 
 would be entirely inconsistent with 
 the legislation and jurisprudence of 
 tlie states of the Union relative to 
 these artificial persons. Legisla- 
 tion has encouraged their organiza- 
 tion, as they concentrate and em- 
 ploy the intelligence, energy, and 
 capital of society, for the develop- 
 ment of enterprises of public utility. 
 There is scarcely an object of gen- 
 eral interest for which some asso- 
 ciation lias not been formed, and 
 
 there are institutions whose mem- 
 bers are found in every part of the 
 Union, who contribute their efforts 
 to the common object. To enable 
 impersonal beings — mere legal en- 
 tities, which exist only in contem- 
 plation of law — to perform corporal 
 acts, or deal with personal agents, 
 the principle of representation has 
 been adopted as a part of their 
 constitution. The powers of the 
 corporation are placed in the hands 
 of a governing body selected by the 
 members, who mauage its affairs, 
 and who appoint the agents that 
 exercise its faculties for the accom- 
 plishment of the object of its being. 
 But these agents may infringe the 
 rights of persons who are uncon- 
 nected with the corporation, or who 
 are brought into relations of busi- 
 ness or intercourse with it. As a 
 necessary correlative to the princi- 
 ple of the exercise of corporate 
 powers and faculties by legal rep- 
 resentatives, is the recognition of a 
 corporate responsibility for the acts 
 of those representatives. 
 
 " With much wariness, and after 
 close and exact scrutiny into the 
 nature of their constitution, have 
 the judicial tribunals determined 
 the legal relations which are estab- 
 lished for the corporation by their 
 governing body, and their agents, 
 with the natural persons with whom 
 they are brought into contact or 
 collision. The result of the cases 
 is, that for acts done by the agents 
 of a corporation, either in contractu
 
 ^t> 
 
 PA K Tins TO A CTfONS. 
 
 X. and Y. were the (uvncrs ot a mill standi^ig on land 
 
 adjoining that under wiuch the mines were worked. 
 
 [32] Defendants employed C()nn)ctcnt persons to Con- 
 
 or in delicto, in the course of its 
 business, and of their employment, 
 the corporation is responsible, as an 
 individual is responsible under 
 similar circumstances. At a very 
 e irly period it was decided in Great 
 Britain, as well as in the United 
 States, that actions mi<^ht be main- 
 tained against corporations for 
 torts ; and instances may be found 
 in the judicial annals of both coun- 
 tries of suits for torts arising from 
 the acts of their agents, of nearly 
 evrry variety. * * * 
 
 " It would be difficult to furnish a 
 reasor^ for the liability of a corpora- 
 tion for a fraud, under such circum- 
 stances, that would not apply to 
 sustain an action for the publication 
 of a libel. The defendants are a 
 corporation, having a large capital 
 distributed among several hundreds 
 of persons. Their railroad con- 
 nects large cities, and passes 
 through a fertile district. Their 
 business brings them in competi- 
 tion with companies and individuals 
 concerned in the business of trans- 
 portation. They have a numerous 
 body of officers, agents, and ser- 
 vants, for whose fidelity and skill 
 they are responsible, and on whose 
 care the success of their business 
 depends. The stock of the com- 
 pany is a vendible security, and the 
 community expects statements of 
 its condition and management. 
 There is no doubt that it was the 
 duty of the president and directors 
 to investigate the conduct of their 
 
 officers and agents, and to report 
 the result of that investigation to 
 the stockholders, and that a publi- 
 cation of the evidence and report 
 is within the scope of the powers 
 of the corporation." 
 
 "But the publication must be 
 made under all the conditions and 
 i-esponsibilities that attach to indi- 
 viduals under such circumstances. 
 The Court of Queen's Bench, in 
 Whitcfield v. South East. R. R. Co., 
 98 Eng. C L. (May, 1858,) say : ' If 
 we yield to the authorities which say 
 that, in an action for defamation, 
 malice must be alleged, notwith- 
 standing authorities to the contrary, 
 this allegation may be proved by 
 showing that the publication of the 
 libel took place by order of the de- 
 fendants, and was therefore wrong- 
 ful, although the defendants had no 
 ill will to the plaintiffs, and did not 
 mean to injure them.' And the 
 court concluded : ' That for what is 
 done by the authority of a corpora- 
 tion aggregate, that a corporation 
 ought as such to be liable, as well 
 as the individuals who compose it.' 
 The question arises, whether the 
 publication is excused by the rela- 
 tions of the president and directors, 
 as a committee from their board, to 
 the corporation itself. It cannot be 
 denied that the inquiries directed 
 by those officers were within the 
 scope of their power, and in the 
 performance of a moral and legal 
 duty, and that the communication 
 to their constituents of the evidence
 
 GENERAL RULES. 
 
 37 
 
 struct a reservoir. A. had worked his mines to a spot 
 where there were certain passages of disused mines, 
 which communicated with shafts which led to the land 
 
 collected by them, and their con- 
 clusions upon the evidence, was a 
 privileged communication in the 
 absence of any malice or bad faith. 
 But the privilege of the officers of 
 the corporation as individuals, or 
 of the corporate body, does not ex- 
 tend to the preservation of the re- 
 port and evidence in the permanent 
 form of a book for distribution 
 among the persons belonging to 
 the corporation or the members of 
 the community. It has never been 
 decided that the proceedings of a 
 public meeting, though it may have 
 been convened by the authority of 
 law, or of an association engaged 
 in an enterprise of public utility, 
 could be reported in a newspaper 
 as a privileged publication. But a 
 libel contained in such proceedings, 
 if preserved in the form of a bound 
 volume, might be attended with 
 more mischief to private character 
 than any publication in a news- 
 paper of the same document The 
 opinion of the court is, that in so 
 far as the corporate body authorized 
 the publication in the form em- 
 ployed, they are responsible in 
 damages." 
 
 Mr. Justice Daniel dissented, 
 saying : 
 
 "This action could not be main- 
 tained in any forum possessing even 
 general legal powers. It is to be 
 borne in mind that the proceedings 
 in this case are not founded upon 
 any express or peculiar right or 
 authority vested by statute or other 
 
 special and competent power, but 
 are claimed as the legitimate conse- 
 quences inherent in and flowing 
 from the nature and constitutions 
 of corporations aggregate. By those 
 who afifia-n this doctrine, it is indis- 
 pensable that they should show, as 
 inherent m and consistent with the 
 constitution of such corporations, 
 the attributes and qualities to which 
 proceedings like the present are 
 calculated to apply, and with which 
 they can by any rational or logical 
 comprehension be made applicable. 
 The metamorphosis which would 
 transmute an aggregate corporation 
 into a natural person must neces- 
 sarily transfuse into this new crea- 
 tion the capabilities and qualities 
 of the being into which it is changed. 
 Upon any other hypothesis the fact 
 of identity could not be. Natural 
 persons are capable of the passions 
 of love and hate ; can contend in 
 mortal combat by duel or other- 
 wise ; can go into the field in com- 
 mand of armies ; can sit upon the 
 bench of justice or in the legislative 
 or executive departments of the gov- 
 ernment. According to this trans- 
 mutation theory, all these qualities 
 are imparted to its new Prome- 
 thean experiment, who, of course, 
 could he be only apjirehended, 
 or laid hold of, might, like his pro- 
 totype — or more properly, his other 
 self — be subjected for the misuse 
 of those qualities to the extremest 
 penalties of the law, the scaffold or 
 the gallows. To my apprehension
 
 38 
 
 PA R TIF.S Ti ) A CTIONS. 
 
 above, and which w ere apparently filled up with earth. 
 No care was taken by the contractor or the engineer to 
 fill up these shafts. The water introduced into X. and 
 
 this theory involves the confound- 
 ing of all political, legal, moral and 
 social distinctions. By that appre- 
 hension, derived from the defini- 
 tions of corporations aggregate as 
 given by Brooke, Coke and Black- 
 stone, and by the express lan- 
 guage of this tribunal in the earlier 
 cases decided by it, these bodies are 
 regarded as merely artificial — a 
 species oi ficiiones juris created for 
 particular objects and vested, cer- 
 tainly, with no greater or higher 
 attributes than the creator of those 
 bodies has power to bestow. Man 
 can have no power to confer mind 
 passion or moral perception nor 
 moral powers upon a mere fabrica- 
 tion of his own — a mere piece of 
 parchment or paper. No quo 
 animo, therefore, can be affirmed 
 of a fiction to which no animus or 
 passion or moral quality can be 
 imparted. 
 
 " It has ever been admitted that 
 into slander or libel malice essen- 
 tially enters. Slander or libel is an 
 injury inflicted with a wicked or 
 malevolent motive. Reason and 
 common sense would hence con- 
 clude that where there could be 
 motive of no kind whatsoever, 
 there could be no malice, and 
 therefore no offence of which 
 malice is the essential, 'the leading 
 and distinguishing characteristic. 
 
 " In several of the English cases 
 it has been ruled that trover and 
 trespass quare claiisum fregit may 
 be maintained against a corpora- 
 
 tion ; and this, with respect to the 
 latter action, is going a great way, 
 as it is not very easy to explain in 
 what mode a mere fiction or legal 
 faculty can act vi et armis ; yet a 
 conceivable distinction may be 
 taken between acts injurious in 
 their effects, and viewed as mere 
 facts, and performed independ- 
 ently of or without motive, and for 
 which the actor is bound to make 
 reparation, and condurt the char- 
 acter of which lies exclusively in 
 the motive, and which apart from 
 such motive ca^i neither exist nor 
 be conceived." 
 
 The authority of the principal 
 case has been followed, notwith- 
 standing this reasoning, by several 
 cases in the same court. And in 
 Aldrich v. Press Printing Co., 9 
 Minn. 133, libelous matter in re- 
 gard to a candidate for public 
 office was held not a privileged 
 communication, though in a news- 
 paper published by a corporation 
 aggregate. 
 
 A corporation aggregate has the 
 power to compose and publish a 
 libel. When the directors, as con- 
 stituting the corporation, within the 
 scope of the objects and purposes 
 of the corporation, do an injury to 
 another, even though such injury 
 necessarily involves in its commis- 
 sion a malicious intent, the corpora- 
 tion must be deemed by imputation 
 to be guilty of the wrong and an- 
 swerable for it as an individual 
 would be in such case. Maynard v.
 
 GENERAL RULES. 
 
 39 
 
 Y.'s icservoir broke through the shafts and Hooded A.'s 
 mine. 
 
 There could in this case be no doubt that A. had beei 
 
 Firemen's Fund Ins. Co., 34 Cal. 48. 
 
 A corporation may also sue for 
 libel, for it may have a reputHtion 
 which is equally as valuable to it 
 as to a natural person, and may be 
 injured in the same way. Trenton 
 Ins. Co. V. Perrine, 3 Zab. 402 ; 
 Mutual Reserve Fund Life Assoc. 
 V. Spectator Co., 50 N. Y. Super. 
 Ct. 460. 
 
 The statements of a mercantile 
 agency in regard to plainiiff' s busi- 
 ness, credit and standing, made in 
 good faith and upon infonnation on 
 which it relied, and in answer to a 
 subscriber who had an interest in 
 knowing the facts making inquiry, 
 are privileged and do not make it 
 liable to an action. Erber v. Dun, 
 4 McCrary C. C. 160; Trussell v. 
 Scarlett, 18 Fed. Rep. 214. 
 
 The members of a church coun- 
 cil are liable for the publication of 
 their finding as a council, charging 
 plaintiff with having disturbed the 
 peace of the church by circulating 
 false reports about the pastor, and 
 containing a censure therefor, if 
 such finding were false and mali- 
 ciously made. Owen v. Hildebrand, 
 92 Ind. 19. And it was also held 
 that it was competent to show by 
 the constitution of the church, that, 
 as a member of the church, the 
 plaintiff was not subject to the dis- 
 cipline of the council without pre- 
 vious citation to appear before the 
 same, and that he had had no pre- 
 vious notice of the proceedings until 
 after they were had, to prove that 
 
 the council, in passing the resolu- 
 tion complained of, was not acting 
 within its lawful authority and juris- 
 diction. 
 
 But in Landis v. Campbell, 79 
 Mo. 433, an almost identical case 
 with the preceding as to both find- 
 ing and want of notice, Henry, J., 
 said : ' Persons who join churches, 
 secret societies, benevolent asso- 
 ciations or temperance organiza- 
 tions voluntarily submit themselves 
 to the jurisdiction of those bodies, 
 and in matters of faith and indi- 
 vidual conduct affecting their rela- 
 tions as members thereof submit 
 themselves to the tribunals estab- 
 lished by those bodies to pass upon 
 such questions, and if aggrieved by 
 a decision against them, made in 
 good faith by such judicatories, 
 they must seek their redress within 
 the organization, as provided by its 
 laws or regulations. If the civil 
 courts should assume jurisdiction 
 to review such proceedings upon 
 alleged errors, they would attempt 
 to administer laws not recognized 
 by the constitution or laws of the 
 state, of which it may be said, with- 
 out disparagement to the judiciary, 
 they may be as ignorant as the 
 most illiterate member of tlie asso- 
 ciation Actions for libel and slan- 
 der would crowd the docket of the 
 civil courts, which would, upon 
 that theory, be open to the com- 
 plaint of every man expelled from 
 a church or masonic or odd fel- 
 low's lodge, or temperance societ",
 
 40 
 
 PA R TIES TO A C TIONS. 
 
 damai^^cd. The question for consideration was, in sub- 
 stance, whether A. had sulVcred an injury from X. and Y., 
 for though the form which the (juestion took was what was 
 the strict duty of X. and Y. towards A., this inquiry is in 
 substance exactly the same as the question what was the 
 right of A. against them. The question at issue is thus 
 stated by the court: — 
 
 " The plaintiff, though free from all blame on his part, 
 must bear the loss, unless he can establish that it was th^ 
 consequence of some default for which the defendants are 
 responsible. The question of law, therefore, arises, what 
 is the obligation which the law casts on a, person who, 
 like the defendants, lawfully brings on his land something 
 which, though harmless whilst it remains there, will 
 naturally do mischief if it escape out of his land. It is 
 agreed on all hands, that he must take care to keep in 
 that which he has brought on the land and keeps there, 
 in order that it may not escape and damage his neigh- 
 bors. But the question arises whether the duty which 
 the law casts upon him under such circumstances is an 
 
 and every woman excluded from the question of errors in the pro- 
 
 any of the societies of which this ceeding, but give it the same force 
 
 age is so prolific. Every such ex- and effect as if it had been regular 
 
 pulsion involves to some extent a in every respect. * * * The 
 
 charge of moral turpitude or con- acts of the session in suspending and 
 
 duct unbecoming a gentleman or expelling plaintiff afford a complete 
 
 lady. defence to this action, unless the 
 
 "It follows from the principles charges against plaintiff were false, 
 
 announced in the above cases that and the members of the session 
 
 if a judicatory of a church has juris- maliciously and falsely or colorably 
 
 dicdon by its laws to try a member made such proceedings a pretence 
 
 for an offence involving immo- for covering an intended scandal, 
 
 rality, its decision is final and not Farnsworth v. Storrs, 5 Cush. 412; 
 
 subject to be reviewed by the civil Street v. Wood, 12 Barb. 105; 
 
 courts for alleged errors; that the Shurtleff v. Stevens, 51 Vt. 514; 
 
 civil courts will not examine into S. C, 31 Am. Rep. 698."
 
 GENERAL RULES. 41 
 
 absolute duty to keep it at his peril, or is ... . 
 merely a duty to take all reasonable and prudent precau- 
 tions in order to keep it in, but no more. If tne first be 
 the law, the person who has brought on his land and kept 
 there something dangerous, and failed to keep it in, is 
 responsible for all the natural consequences of its escape. 
 If the second be the limit of his duty, he would not be 
 answerable except on proof of negligence, and con- 
 sequently would not be answerable for escape aris- [33] 
 ing from any latent defect which ordinary prudence 
 and skill could not detect." {q) 
 
 The question therefore was, what was A.'s right ? If 
 A. had an absolute right to insist upon the defendants 
 keeping the water off his land, he had suffered an injury. 
 If A. had only a right to insist upon the defendants taking 
 reasonable care to keep the water off his land, he had suf- 
 fered a loss, but had not suffered an injury. The majority 
 of the court of exchequer held (r) that the plaintiff's right 
 was only to insist on reasonable care on the part of the 
 defendants, and that A. therefore could not maintain an 
 action. The exchequer chamber is) held that A.'s right 
 was to have the water kept off his land, and that there- 
 fore A. could maintain an action, and the house of lords 
 affirmed (/) the judgment of the exchequer chamber. A., 
 therefore, must now be taken to have suffered aninjurj^as 
 well as a loss. 
 
 A.'s right would, however, have been different had tho 
 water accumulated naturally, and not been artificially 
 collected, {ii) 
 
 Wherever the rights of adjacent owners, or the rights 
 of persons of whom one owns the surface of the soil, and 
 the other the soil below the surface, come into question, 
 the inquiry, what does or does not constitute an injury to 
 
 (^) Fletcher v. Kylands, L. R. I, Ex. 279, Ex. Ch. 
 (r) Ibid.. 34 L. J. 177, Ex. ; 3 H. & C. 774. 
 (/) Ibid., L. R. I, Ex. 265 ; 35 L. J., 154 Ex. (Ex. Ch ). 
 (/) Il)id.. L. R. 3 H. L. 230. 
 
 (»/) .Smith V. Kcnrick, 7 C. H 515 ; 18 L. J. 172, C. P. Compare Baird t. 
 Williamson, 33 L. J. roi, C. T. ; 15 C. B.. N. .S,, 376
 
 42 PARTIES TO ACTIONS. 
 
 the one party or the other, is apt to give rise to fine dis- 
 tinctions. 
 
 The owner of land, for example, has a right to sup- 
 port for his land from the adjacent land ; {v) but this 
 
 right is not an absolute right, and the infringement 
 [34] of it is not a cause of action without appreciable 
 
 damage, {zu) But this right of the owner to sup- 
 port from the adjacent land extends only to the land in 
 its natural unincumbered state, and not with the addi- 
 tional weight of the buildings upon it. {x) For " it may 
 be true that if my land adjoins that of another, and I 
 have not by building increased the weight upon my soil, 
 and my neighbor digs in his land so as to occasion mine 
 to fall in, he may be liable to an action. But, if I have 
 laid an additional weight upon my land, it does not follow 
 that he is to be deprived of the right of digging his own 
 ground, because mine will then become incapable of sup- 
 porting the artificial weight which I have laid upon it." 
 (j) The owner of the land has, again, a right to support 
 for the natural surface, as against the owner of the subja- 
 cent strata, {z) though not to support of buildings erected 
 thereon, {a) yet he may maintain an action for disturbance 
 of the natural right to support for the surface, notwith- 
 standing buildings have been erected thereon, provided 
 the weight of the buildings did not cause the injury, {b) 
 
 Take, again, rights having reference to water. A mill- 
 owner has no right of action against a person who, by 
 digging a well on his own land, prevents the natural per- 
 colation of water to his mill-stream, {c) But a person has 
 a right of action when an underground stream which 
 
 iv) Nicklin v. Williamson, lO Ex. 359; 23 L. J. 335, Ex.; Smith v. 
 Thackerah, L. R. i, C. P. 564; 35 L. J. 276, C. P. 
 
 (ju) Nicklin v. Williamson, 10 Ex. 359 ; 23 L. J. 335, Ex. ; Smith v. 
 Thackerah, L. R. i, C. P. 564 ; 35 L. J. 276, C. P. 
 
 (x) Dodd V. Holme, i A. & E. 493 ; Wyatt v. Harrison, 3 B. and Ad. 871. 
 
 (y) Wyatt v. Harrison, 3 B. & Ad. 876, per Curiam. 
 
 (z) Humphries v. Brogden, 12 Q. B. 739 ; 20 L. J. 10. Q. B. ; Smart v. 
 Morton, 5 E. & B. 30 ; 24 L. J. 260, Q. B. 
 
 {a) See Humphries v. Brogden, 12 Q. B. 742 ; 20 L. J. 10, Q. B. 
 
 \l>) Stroyan v. Knowles, 6 H & N. 454 ; 30 L. J. 102, Ex. 
 
 \c) Chasemore v. Richards, 29 L. J., (H. L.) 81, Ex. ; 7 H. L. C. 349-
 
 GENERAL RULE^. 43 
 
 flows into the plaintift's mill-stream is fouled Dy the works 
 of the defendant, {d) And the general rule on this point 
 seems to be that a proprietor of land has a right to 
 have the natural streams of water which run through [35] 
 his land, run in their natural course, {e) and has a 
 right also to use it as it passes, (/) and all riparian pro- 
 prietors have these rights ; {g') but that on the other hand, 
 with respect to water, whether on the surface or under 
 ground, not running in defined streams, no similar rights 
 exist. Such water is the absolute property of the owner 
 of the soil of which it forms a part, and no action will lie 
 for abstracting it, although such abstraction may diminish 
 the water under neighboring lands, or otherwise injure 
 them. (//) Hence, where A. was the o\yner of land, and 
 X., by draining his own land, withdrew from A. water 
 which theretofore ran beneath A.'s land, and thereby 
 caused A.'s land to subside, A. was held to have no right 
 of action against X. (z) 
 
 A. and B. (the plaintiffs) were allowed by M., the pro- 
 prietor of a canal, to divert some of the water in it, and 
 use it for their steam-engines. X. (the defendant) fouled 
 the water of the canal, whereby it flowed into their prem- 
 ises in afoul state, and injured the boilers of their engines. 
 {k) The damage to A. and B. was in this case clear. Tiie 
 question was, whether the plaintiffs, being simply per- 
 mitted by M. to use the stream, had a right of action 
 against X. The Court of Exchequer (/) held that tlie 
 plaintiffs had a right of action, i. e., had sustained an in- 
 jury. The judges in the Exchequer Chamber (w) were 
 
 {d) Hodgkinson v. Ennor, 4 B. & S. 229 ; 32 L. J. 231, Q. B ; and see 
 Acton V. Blundell, 13 L. J. 2Sg, Ex. 
 
 (e) Wood V. Wand, 3 Ex. 748, 775. 
 
 (J) Einl)rey v. Owen, 20 L. J. 2r2, Ex. ; 6 Ex. 369. 
 
 (g) Il.id. 
 
 (h) Acton V. r.linulell, 12 M. & W. 324 ; 13 L. J. 2S9, Ex. ; Chascmore t. 
 Richards, 29 L. J. 81. Ex. ; 7 II. L. C. 349. 
 
 (0 Poppleweil V. Ilodkinson, L. R. 4. Ex. 248 ; 38 I,. J- 126. Ex. (Ex. Ch,). 
 
 \k) Whaley v. I.aing. 2 II. & N. 476 ; 26 L. J. 327, Ex ; 3 H. & N. 675; 
 a? L. J. 422, Ex. (Ex. Ch.). 
 
 (/■) 2 II. & N. 476 ; 26 L. J. 327, Ex. 
 
 (m) 3 M. & N. 6:5 ; 27 L."j. 422. Ex. (Ex. Ch.).
 
 44 PARTIHS TO ACTIONS. 
 
 equally divided in opinion as to whether the olaintiffs had 
 or had not a right of action. 
 
 "It is contended," sa3's Crowder, )., "that no 
 
 [36] right of action is shown in the declaration But 
 
 I think it sufficiently appears that the plaintiffs were 
 in the lawful enjoyment of a beneficial flow of clear water 
 from the branch canal, and that the defendant wrongfully 
 polluted the- stream, and thereby damaged the plaintiffs, 
 which appears to me a sufficient statement of a good cause 
 of action." (w) 
 
 The opposite view is thus stated by Williams, J. : The 
 declaration " shows no cause of action ; it merely alleges 
 that the plaintiffs had enjoyed the benefit of the waters of 
 a canal, near to their engine, which waters had been used, 
 and ought to have been free from the pollution thereinafter 
 mentioned ; and it then avers that the defendant polluted 
 them and thereby damaged the engines. I agree with 
 th.e Barons of the Exchequer as to the construction of the 
 allegation that the waters ought to have been free from 
 pollution, viz., that it means, not an assertion of title in 
 the plaintiffs, but that the defendant had no right to foul 
 the water. But if this be so, then the declaration contains 
 no allegation whatever that the plaintiffs were rightfully 
 in the enjoyment of the benefits of the waters, and there 
 is nothing to show that they were not themselves wrong- 
 doers, in which case I think they would have no right of 
 action." (<?) 
 
 " I can find," it is said by Wightman, J., " nothing in 
 the declaration to show that the defendant, by fouling the 
 water, injured an}- right of the plaintiffs, nor that as against 
 them he can be considered a wrong-doer, anil the intro- 
 duction of the word ' wrongfully,' will not make him, 
 prima facie, a wrong-doer, unless the circumstances stated 
 in the declaration show him to be so. I am therefore of 
 opinion that the declaration does not show any right oi 
 action against the defendant." (/>) 
 
 {n) Whaley v. Laing, 3 H. & N. 680 (Ex. Ch.), per Crowder, J. 
 {o) Ibid., 683, judgment of Williams, J. 
 (/) Ibid., 685, judgment of WiGHTMAN, J.
 
 GENERAL RULES. 45 
 
 This case therefore raised the question, whether a per- 
 son merely permitted to use certain water has a right 
 as against a wrong-doer to have the water kept pure ; [37] 
 and though the rights of such a mere licensee still 
 appear doubtful, it would seem that a person to whom the 
 right to use the water has been regularly granted \iy the 
 owners of the stream, may sue any one who pollutes it, 
 {(J) on the principle that " as a general rule, when a man 
 has a property, he may grant to others estates in, and 
 right of enjoyment of it, and the grantees may maintain 
 actions against those who disturb them." (r) 
 
 A canal company granted by deed to A. (the plaintiff) 
 the sole and exclusive right or liberty of putting or using 
 pleasure-boats for hire on their canal. X. (the defend- 
 ant) put and used pleasure-boats for hire on the canal. It 
 was held {s) that A. could not bring an action in his 
 own name against X, The ground of this decision is, 
 that though X. was a wrong-doer as against the company, 
 and that though A. had a right as against the company to 
 the exclusive use of the canal, X. had not violated any 
 right possessed by A. as against him. 
 
 " This grant merely operates as a license or covenant 
 on the part of the grantors, and is binding on them as 
 between themselves and the grantee, but gives him no 
 right of action in his own name for any infringement of 
 the supposed exclusive right. It is argued that as the 
 owner of an estate may grant a right to cut turves, or to 
 fish, or hunt, there is no reason why he mav not grant 
 such a right as that now claimed by the plaintiff. The 
 answer is that the law will not allow it. So the law will 
 not permit the owner of an estate to grant it alternately 
 to his heirs male and heirs female. A new species of 
 incorporeal hereditament can not be created at the will 
 and pleasure of the owner of i)roi)erty ; but he must be 
 content to accept the estate and the right to dispose of it 
 
 (q) Nultall V. Rracewcll, L. R. 2, Ex. I ; 36 L. J. I, Ex. .See Stockpoil 
 Water Works Co. v. Potter, 3 H. & C. yyo ; 31 L. J. 9, Ex. 
 (r) Ibid., L. K. 2, Ex, 11, per Hkamwkij,, H. 
 \s) Hil V. Tupper, 2 II. & C. 12I ; 32 L.J. 217, Ex.
 
 46 PARTIES TO ACTIONS. 
 
 subject to the law as settled by decisions and con- 
 [38] trolled by Acts of Parliament. A grantor niav 
 
 bind himself by covenant to allow any right he 
 pleases over his property, but he can not annex to it a 
 new incident so as to enable the grantee to sue in his own 
 name for an infringement of such a limited right as that 
 now claimed." {s) 
 
 " This grant is perfectly valid as between the plaintiff 
 and the canal company ; but in order to support this 
 action, the plaintiff must establish that such an estate or 
 interest vested in him that the act of the defendant 
 amounted to an eviction. None of the cases cited are at 
 all analogous to this, and some authority must be pro- 
 duced before we can hold that such a right can be 
 created. To admit the right would lead to an infinite 
 variety of interests in land, and an indefinite increase of 
 possible estates. The only consequence is that, as be- 
 tween the plaintiff and the canal compan}^ he has a perfect 
 right to enjoy the advantage of the covenant or contract ; 
 and, if he has been disturbed in the enj<)3arient of it, he 
 must obtain the permission of the canal company to sue 
 in their name." (/) 
 
 This case deserves particular notice. A. (the plaintiff) 
 had no right of action, because X. had neither broken 
 any contract with him, nor invaded any right which he 
 possessed as against X. independently of contract. X. 
 was a wrong-doer, but the wrong he committed was an 
 invasion of the rights, not of A., but of the company, wh 
 had granted to A. the sole use of the canal. A., on the 
 other hand, possessed rights with regard to the canal, 
 but these rights arose out of the contract between him and 
 the company, and were rights against the company only. 
 A. therefore might probably have sued the company for 
 1 breach of their contract with him in allowing X. to use 
 the canal, or might have f)btained from the company 
 
 permission to sue X. in their name. 
 [39] The case would have been different if X., in- 
 
 {s) Hill V. Tupper, 2 II. & C. 127. 12S, julgment ^.f Pollock. C. B. 
 tt) Ibid. 123. Judgment of Marti.n. H.
 
 GENERAL RULES. 47 
 
 stead of merely rowing on the canal, had attemptea 
 to exclude A. from it. Under such circumstances a dis- 
 tinct right of A.'s, sc, to go freely on the canal, would 
 have been violated, and A. might have brought an action 
 against X. in his own name. 
 
 " It was competent for the grantors in Hill v. Tupper 
 to grant the plaintiff a right of rowing boats on the canal, 
 and had any one interfered with that right, the grantee 
 might have maintained an action against him. But the 
 plaintiff in that case did not sue because his rowing was 
 interfered with, but because the defendant used a boat on 
 the water. Now, suppose the grantors had granted to 
 the plaintiff a right to row boats, and to [B. | a right (as 
 far as the word is sensible) that no one but the plaintifl 
 should row boats on the canal ; clearly [B.] could not 
 have maintained any action. He would not have sued in 
 respect of any estate or of any easement, or of any mode 
 ^f enjoyment which was disturbed, nor did the plaintiff in 
 taat case. It makes no difference that the two rights, as 
 far as possible, were in him, viz., a right to row and a 
 right to exclude others. It was in respect of the latter he 
 sued, and it mattered not he possessed the former." {u) 
 
 The cases which have been cited in illustration of the 
 principle that no one can sue who has not sustained an 
 injury, have been taken from actions for tort. The prin- 
 ciple itself applies equally to actions on contract. As, 
 however, a person's right under a contract depends upon 
 its terms, the inquiry what, if any, is the right of the 
 plaintiff, resolves itself, in actions ex contractu, into the 
 question, "what are the terms of the contract?" — the 
 reply to which is a matter de])ending either upon direct 
 evidence, or upon what is called the " interpretation " ot 
 documents. 
 
 If, however, the terms of a contract are not in 
 fact fixed upon by the parties, but are affixed by [40] 
 the law to the relation in which they have agreed 
 to stand towards one another, the so-called incpiiry intc 
 the terms of the contract is obviously ncjthing myre tiiar 
 
 (l^^ Nuttall V. Bu-icewfll, I,. R. 2. Ex. ii, u, per Mkamwki.i,. IJ.
 
 ^8 rA/^T/J:}> TO ACTIONS. 
 
 an in(]uiry into the nature of the right, if any, p'jb.sessed 
 by the plaintift". 
 
 Thus, where it is sought to determine how far a com- 
 mon carrier is liable for the safety of passengers, (,r) or a 
 person who lets out seats on a stand for the safety of the 
 sight-seers by whom the seats are hired, (j) the point for 
 determination is in reality whether the plaintiff has or 
 has not suffered an interference with his legal rights, and 
 in short jjives rise to a question of the same kind as that 
 which has to be decided when it is necessary to ascertain 
 what is the right, if any, which a landowner has to sup- 
 Dort from his neighbor's adjacent ground. Actions, 
 nowever, brought on account of the breach of some con- 
 dition, superadded b}' law or custom to the terms of a 
 contract, are, though in essence actions on contract, most 
 frequently, in form, actions for tort. 
 
 Since, of acts which cause damage some are ''injuri- 
 ous " and others are not, it is natural to seek for a criterion 
 to determine whether damage has or has not been occa- 
 sioned by what the law esteems an injury, and the rule 
 which has been laid down is " to consider whether any 
 rights existing in the party damnified have been infringed 
 upon, for if so, the infringement thereof is an injury. "(^r) 
 But this maxim is in reality only a repetition of the rule 
 that mere damage without injury does not give a cause of 
 action. Another maxim which aims at defining the limits 
 of different rights (and to do this is in reality to point out 
 what acts are injurious) is " so to use your own property 
 as not to injure the rights of another." (a) It has been 
 criticised on the ground that " a party may damage the 
 property of another where the law permits, and he 
 [41] may not where the law prohibits, so that the maxim 
 can never be applied till the law is ascertained, and 
 when it is, the maxim is superfluous." {d) 
 
 (x) Readhead v. Midland Ry., L. R. 4, Q. 11. 379 ; 38 L. J. 169, Q. B 
 Ex. Ch. 
 
 (7) Francis v. Cockrell, L. R. 5, Q. B. 184 ; 39 L. J. 113, Q. B. 
 
 (z) Ashby V. White, notes, i Smith, L. C, 6th ed., 263. 
 
 (a) Broom, Maxims, 4th ed., 357. 
 
 id) Tozer v. Child. 26 L. J. 151, Q. B. ; 7 E. & B. 377.
 
 GENERAL RULES, . 49 
 
 On the whole, it may be doubted whether any genera' 
 principle by <\^hich to discriminate acts which merel)- 
 cause damage from those which amount to injuries, i. e.^ 
 are an infringement of legal rights, can be obtained. 
 
 Rule 3, — No action can be brought except for 
 the infringement of a common law right, {cy 
 
 A person may possess rights which can not be enforced 
 by an action ; for our courts of law only consider legai 
 rights. " Our courts of equity have other rules by which 
 they sometimes supersede or supplement legal rules." (d) 
 The rights enforceable in courts of equity only are termed 
 equitable rights, and are never the basis of an action at 
 law, (e) though their existence (/) is to some extent rec- 
 ognized by the common law courts. 
 
 Hence, a cestui que trust can not bring an action against 
 his trustee for his act as trustee." Thus, a trustee who 
 has received trust money, is accountable for it to the cestui 
 que trust in the Court of Chancery, (g) but in the courts 
 of law he is treated, for most purposes, as the absolute 
 owner, and no action can in general be maintained bj the 
 cestui que trust against him to recover trust-money, 
 for " it is quite clear that so long as no other relation 
 subsists between two parties, except that of trustee and 
 cestui que trust, no action can be maintained by 
 the latter against the former for any money in his [42] 
 
 (..•) As contrasted with an equitable right. Rights at common law are also 
 frequently contrasted with rights given by statute. 
 
 (d) Bauerman v. Radenius, 2 Smith, L. C, 6th ed., 367, per Kenyon, 
 C.J. 
 
 («•) Bartlett v. Wells, i B. & .S. 336 ; 31 L. J. 57, Q. B. 
 
 (/) Maherly v. Robins, 5 Taunt. 625 ; Powles v. Innes, 11 M. & W. 10 ; 
 D'Arnay v. Clicsneau, 13 M. & W. 796. 
 
 (^) Pardoe v. Price, 16 M. & W. 451. 
 
 I. One suing a trustee for not ac- sertion that defendant has con- 
 counting, cannot convert the action verted the money to his own use. 
 into one for tort by adding to the Segclkcn v, Meyer, 94 N. Y. 474. 
 allegation of refusal to pay an as- 
 4
 
 50 PARTIES TO ACTIONS. 
 
 liands. The trustee is in such a case the only person 
 entitled at law to the money, and the remedy of the cestui 
 quo trust is exclusively in a court of equity. ... So 
 lono- as there is no liabilit}' except as trustee, the cestui 
 que trust has no le<;al remedy." (h) A husband, therefore, 
 can not recover the property of his wife in the hands of a 
 trustee (/) and an executor or administrator is in the posi- 
 tion of a trustee, and the legacies or distributive shares, 
 payable out of the estate of the deceased, can not be re- 
 covered at law as debts. {J) And it should be borne in 
 mind that persons are legally considered as trustees who 
 would not be so called in ordinary language. Thus a person 
 who assigns the interest in a debt or other contract to 
 another is an assignoi trustee for the assignee. 
 
 A trustee may, however, make himself liable to an ac- 
 tion by an acknowledgment or an admission that he holds 
 a specific sum for his cestui que trust, {k) since after such 
 an admission the trustee is debarred from setting up his 
 character of trustee, and becomes liable at law to the 
 cestui que trust for the money as for money received to 
 his use. Thus, though a husband can not recover the 
 separate property of his wife in the hands of a trustee, he 
 can recover it as money received to his use in an action 
 against an agent of the wife to whom the trustee has paid 
 it over, (/) and an executor may have an action brought 
 against him by a legatee, to whom he has admitted that 
 
 he has received the money and holds it to his use ; 
 [43] and generally, " when there is no trust to execute 
 
 except that of paying over money to the cestui que 
 trust, the trustee by his conduct, as for instance by admis- 
 sion that he has money to be paid over, or by settling ac- 
 counts on that footing may, and often does, make himself lia- 
 
 {h) Pardoe v. Price, 458, 459, per Curiam; Edwards v. Bates, 7 M. & G. 
 
 590- 
 
 (/) Pird V. Peagrum, r3 C. B. 639 ; 22 L. J. 166, C. P. 
 
 (/) Decks V. Strutt, 5 T. R. 6qO; Jones v. Tanner, 7 B. & C. 542 ; Wil 
 liams, Executors. 5th ed., 1746. 
 
 {k) Remon v. Hay ward, 2 A. & E. 666 ; Roper v. Holland, 3 A. & E. 99. 
 
 (/) Bird V. Peagium, 13 C. B. 639 ; 22 L. J. 166, C. P. Compare Sloper v. 
 Cottrell, 6 E. & B. 479 ; 26 L. J., 7 Q. B. ; Fleet v. Perrins, L. R. 3, Q. B., 536 ; 
 L R. 4. Q. B. 500. Ex. Ch. ; Topliam v. Morecroft, 8 E. .S- B. 972.
 
 GENERAL RULES. 
 
 51 
 
 blot J ail fiction at law at the suit of the cestui que trust, for 
 money had and received, or for money due on account 
 stated. Such was the case of Roper v. Holland, (w) and 
 there are many others to the same effect. But so lonsr as 
 there is no liability except as trustee, the cestui que trust 
 has no legal remedy." («) 
 
 In these cases the trustee is sued at law. ^f at all, not 
 as a trustee, but as a debtor. {6) 
 
 Subordinate Rule. 
 
 Where one person has a legal and another an equitable in- 
 terest in the same property, any action in respect of such 
 property must be brought by the person who has the legal 
 interest. ' 
 
 It often happens that one person is legally and another 
 equitably interested in the same property, as where A. 
 
 (w) 3 A. & E. 99. 
 
 («) Pardee v. Price, i6 M. & W. 458, 459, per Rolfe, E. 
 
 (p) Broom, Parties, 2nd ed., 109 ; Bullen, Pleadings, 3rd ed., 46, 47. 
 
 I. Every action must be prose- lew v. Hilliman, 16 N. J. Eq. 25; 
 
 cuted in the name of the real party Dixon v. Buell, 21 111. 204. 
 in interest in the states under the The exception in the code of the 
 
 new code. Wiggins v. McDonald, " trustee of an express trust," from 
 
 18 Cal 127; Weaver v. Trustees, the requirement that all actions 
 
 &c., 28 Ind. 119 ; Steeple V. Down- must be prosecuted in the name 
 
 ing, 60 Ind. 488; Freeman v. Fal- of the real party in interest, is not 
 
 coner, 45 N. Y. Super. Ct. 384; limited to •' a person with whom, or 
 
 Robbins v. Deverill, 20 Wis. 156; in whose name a contract shall be 
 
 Hicklin V. Nebraska City National made for the benefit of another," 
 
 I3ank, 8 Neb. 468. This rule is but this is included as a class within 
 
 only a statutory enactment of what the general term. Weaver v. Trus- 
 
 has always prevailed in courts ot tees, 28 Ind. 120: Considerant v. 
 
 equity. GrinncU v. Schmidt, 2 Brisbane, 22 N. Y. 392 ; Robbins v, 
 
 Sandf. 707. Deverill, 20 Wis. 157; Smith v. 
 
 A person beneficially interested Smith, 5 Bush, 632: Hirshfelder v. 
 
 in a contract may, in equity, main- Mitchell, 54 Ala. 419. 
 tain a suit in his own name. liur- A trustee of an express trust is a
 
 52 
 
 PARTIES TO ACTIONS. 
 
 has assii;-nc(.l his interest in a contract to B. (/) Actions 
 with re>;aixl to such propert)' must be brought by or 
 ra'he.- in the name of A., antl not of B. {q) 
 
 (/) Casielli v. Boildinrrton, i E. & H. 66, ; 22 L. J. 5, Q. B. ; i E. & B. S79 ; 
 23 I- J. 31. Q. B. (Ex. Cli.). 
 
 ((/) When a mortgagor is in possession, he may indeed bring actions of tres- 
 pass for interference with his right to possession ; but he then sues, not in vir- 
 tue of owning the land, but simply in virtue of being in possession, on which 
 g.ound a tenant may always bring trespass. Conf. as to Ejectment, Chapter 
 XXXIII. 
 
 person with whom, or in whose 
 name, a contract is made for the 
 benefit of another. Fiarney v. 
 Dutcher, 15 Mo. 93; Gardiner v. 
 Kellogg, 14 Wis. 608 ; Wolcott v. 
 Standley, 62 Ind. 199; Holladay v. 
 Davis, 5 Oreg. 43 ; Hart v. Smith, 
 30 Conn. 97. 
 
 And such trustee may maintain 
 action upon the contract in his own 
 name alone. McClanahan v. Beas- 
 ley, 17 B. Mon. 117; Arosemena 
 V. Hinkley, i r Jones & S. 45 ; Mil- 
 lard V. Baldwin, 3 Gray 486 ; Pon- 
 der V. McGruder, 42 Ga. 244 ; State 
 V. Jacob, 2 Mo. App. 185 ; Good- 
 rich V. Milwaukee, 24 Wis. 430; St. 
 Anthony Mill Co. v. Vandall, i 
 Minn. 251; Carillo v. McPhillips, 
 55 Cal. 130; Life Ins. Co. v. Ray, 
 50 Tex. 517; Treat v. Stanton, 14 
 Conn, 451. 
 
 Whaley, 33 Miss. 162; Peek v. 
 Dodds, 10 Nev. 207. So the as- 
 signee, without consideration, " for 
 collection." Poorman v. Mills, 35 
 Cal. 120; but see Abrams v. Cure- 
 ton, 72 N. C. 526. 
 
 An action for the benefit of an 
 unincorporated association may be 
 brought in the name of its trustees 
 and agents. Trustees of M. E. 
 Church V. Adams, 4 Oreg. 78 ; 
 Beatty v. Kurtz, 2 Pet. 579 ; Cross 
 V. Jackson, 5 Hill 479; Harper v. 
 Crawford, 13 Ohio 129 ; First Cong. 
 Soc. V. Trustees, 23 Pick. 151 ; East 
 Haddam Church v. East Haddam 
 Soc, 44 Conn. 260 ; Gibson v. Arm- 
 strong, 7 B. Mon. 487 ; Kelly v. 
 Love, 20 Gratt. 130. 
 
 The trustee named in a trust- 
 mortgage may foreclose and sell 
 the property without joining the 
 
 But the beneficiary may also bring beneficiary as plaintiff. Wright v. 
 
 the action in his own name. Price 
 V. Phoenix Ins. Co., 17 Minn. 499; 
 McComas v. Ins. Co., 56 Mo. 575 ; 
 Van Schaick v. Third Ave. R. R. 
 Co, 38 N. Y. 354; Davidson v. 
 Elms, 67 N. C, 228. 
 
 The holder of a note as collateral 
 may sue on it as trustee. Willey v. 
 
 Bundy, 11 Ind. 402; Hays v. 
 Gallon, &c., Co., 29 Ohio St. 344; 
 Shelden v. Bennett, 44 Mich. 634 ; 
 Alabama Life Ins. Co. v. Pottway, 
 24 Ala. 561. 
 
 A trustee of a mortgage made by 
 himself may maintain a bill in 
 equity to redeem without making 
 
 Gatling, 70 N. C. 421 ; Donohue v. the beneficiary a party to the bill. 
 Gamble, 38 Cal. 351; Castner v. Boyden v. Partridge, 2 Gray, 193. 
 Sumner, 2 Minn. 47 ; Marble v. A third person, for whose benefit
 
 GENERAL RULES. 
 
 53 
 
 Moreover, the courts of law look in strict theory only 
 to the parties on the record, i. e., to the parties whose 
 names appear on the pleadings, and "a cause must always 
 be decided as if the parties on the record were the 
 persons really interested." (r) Hence, where A. [44] 
 sues as trustee for B.. or in other words B. brings 
 
 (r) Com. Dig., Action, B. 38 ; Baueiman v. Radenius, 2 Smith L. C, 6tb 
 ed., 362. 
 
 a contract is expressly made, may name. Rogers v. Gosnell, 51 Mo. 
 
 maintain his action thereon. Sailly 469 ; though the consideration does 
 
 V. Cleveland, 10 VVend 162 ; Allen not move from him. Barboro v. 
 
 V. Thomas, 3 Mete. (Ky.) 199 ; Phil- Occidental Grove, 4 Mo. App. 433; 
 
 lips V. Bush, 15 Iowa, 64; Brewer Kollock v. Parcher, 52 Wis. 399; 
 
 V. Dyer, 7 Cush. 340; Nutter v. Barker v. Bucklin, 2 Denio, 47; 
 
 Sydenstricker, 1 1 W. Va. 547 ; 
 Larned v. Carpenter, 65 111. 544, 
 But if the promise is made to a 
 trustee for the beneficiary, the 
 former alone can sue. Porter v. 
 Raymond, 53 N. H. 519; Treat v. 
 
 Brewer v. Dyer, 7 Cush. 340 ; Bo- 
 hannon v. Pope, 42 Me. 96; Steele 
 V. Clark, 77 111. 473 ; Mason v. 
 Hall, 30 Ala. 601 ; Exchange Bank 
 V. Rice, 107 Mass. 41 ; and even 
 though the contract be under seal 
 
 Stanton, 14 Conn. 445. And even in Wisconsin and some other states, 
 substituted trustees must sue in the McDowell v. Lacy, 35 Wis. 175; 
 name of their predecessors, with Rogers v. Gosnell, 51 Mo. 469; 
 whom the contract was made, for Coster v. Mayor of Albany, 43 N. 
 the benefit of the estate. Binney Y. 411 ; Thompson v. Thompson, 
 V. Plumly, 5 Vt. 500; Devant v. 3 Lea, 126; see Patterson v. 
 Guemrd, i Spear, 242 ; IngersoU v. Triumph Ins. Co., 64 Me. 503 ; 
 Cooper, 5 Blachf. 420. Gautzert v. Hoge, 73 111. 30 ; Booth 
 The action may be maintained v. Conn. Mut. Life Ins. Co., 43 
 either by the promisee or such third Mich. 299; Millard v. Baldwin, 3 
 person. Steene v. Aylesford, i Gray, 486 ; but not if the third per- 
 Conn. 253; Stroun v. Hartford son is a mere stranger to the con- 
 Fire Ins. Co., 33 Wis. 657 ; Rogers tract and only incidentally bene- 
 v. Gosnell, 51 Mo. 469. The third fited thereby. Lake Ontario Shore 
 j)erson beneficiary might maintain R. R. v. Curtis, 80 N. Y. 222. 
 his action in equity upon the prom- The rule is the same, although 
 ise prior to the code. Clapp v. no express promise be proved, 
 Lawton, 51 Conn. 95. where one receives money or prop- 
 Now the person with whom the erty to the use of a third person, 
 contract is made may bring the Kountz v. Halthouse, 85 Pa. St. 
 action without joining the bene- 237 ; Carnegie v. Morrison, 2 Mete, 
 ficiary, but this docs not take away 401 ; Weston v. Barker, 12 Johns, 
 the latter's right to sue in his own 278; Durham v. Bishop, 47 Ind.
 
 54 
 
 PA K TFIiS TO A C TIONS. 
 
 an action in A.'s name, tlu)ui;li the action be in reality 
 wholly for the benefit of B., A. being the party on the 
 record, can not be looked upon as a mere cipher, and B. 
 
 21 1 ; Bartlctt v. Matson, i Mo. App. 
 
 157- 
 
 Where one procures an insurance 
 policy, loss payable to another as 
 his interest may appear, either the 
 procurer or said beneficiary may 
 sue in case *of loss. Somes v. 
 Equitable Safety Ins. Co., 12 Gray 
 532 ; Brunswick Sav. Inst. v. Ins. 
 Co., 68 Me. 314; Chamberlain v. 
 N. H. Fire Ins. Co., 55 N. H. 258 ; 
 Westchester Fire Ins. Co. v. Foster, 
 90 III. 122; Hammel v. Queen 
 Ins. Co., 50 Wis. 243; Newman v. 
 Ins. Co., 17 Minn. 126; Pitney v. 
 Glen's Falls Ins. Co., 65 N. Y. 6; 
 Ins. Co. V. Davenport, 2>7 Mich. 
 612. 
 
 Where the purchaser of prop- 
 erty executes his notes to another 
 than the seller, at the latter's re- 
 quest, the payee is the proper party 
 to sue thereon. Stevens v. Songer, 
 14 Ind. 342. 
 
 A party to a contract under seal 
 only can maintain an action thereon, 
 as he has the legal interest therein. 
 Northampton v. Elwell, 4 Gray, 
 81 ; Flynn v. North American Life 
 Ins. Co., 115 Mass. 449; La Grange 
 V. Chapman, 11 Mich. 500; Thomp- 
 son V. Thompson, 4 Heisk. 126; 
 Holmes v. Fisher, 13 N. H. ii; 
 Gov. of Arkansas v. Ball, i Hemp. 
 545 ; Agnew v. Leath, 63 Ala. 346 ; 
 Hager v. Phillips, 14 111. 250. A 
 covenant expressed between par- 
 ties, but for the benefit of a third 
 person, cannot be sued on except 
 in the name of one of the pa'-iies. 
 
 and not in that of such third per- 
 son. Smith' y. Emery, 12 N. J. L. 
 60; National Bank v. Segur, 39 N. 
 J. L. 175; Harris v. Plant, 31 Ala. 
 639; Dick V. Reynolds, 4 Martin, 
 N. S., 529. 
 
 But in Iowa and California the 
 person intended to be secured in 
 any bond may sue thereon, though 
 his name be not mentioned therein. 
 Huntington v. Fisher, 27 Iowa, 
 277; Moorman v. Collier. 32 Iowa., 
 139; Baker v. Bartol, 7 Cal. 553; 
 so bonds to the state. Taaffe v. 
 Rosenthal, 7 Cal. 195 ; Curiae v. 
 Packard, 29 Cal. 195 ; MacBeth v. 
 Van Sickle, 6 Nev. 135, 
 
 A trustee of real est tte alone can 
 sue and defend and protect the 
 title in a court of law, the cestui que 
 trust, though the absolute owner in 
 equity, being regarded in law as a 
 stranger. Hooper v. Scheimer, 23 
 How. 235 ; Cox V. Walker, 26 Me. 
 504 ; Beach v. Beach, 14 Vt. 28 ; 
 Baptist Soc. V. Hazen, 100 Mass. 
 322 ; Davis v. Charles River R. R., 
 1 1 Cush. 506 ; Western R. R. Co. v. 
 Nolan, 48 N. Y. 517; Church v. 
 Stewart, 27 Barb. 553 ; Matthews 
 V. Ward, 10 G &; J. 443 ; Mordecai 
 V. Parker, 3 Dev. 425 ; Moore v. 
 Burnet, 11 Ohio, 334; Adler v. 
 Sewell, 20 Ind. 598 ; Kirkland v. 
 Cox, 94 111. 402 ; Ponder v. McGru- 
 der, 42 Ga. 242 ; Ryan v. Bibb, 46 
 Ala. 323 ; Moody v. Farr, 33 Miss. 
 192; or the grantee of the trustee, 
 even though the title came to him 
 in breach of the trust, so far is the
 
 GENERAL RULES. 
 
 55 
 
 will \ e bound by A.'s acts and admissions, and liable to 
 defeases good as against A. {s) For " the plaintiff, though 
 he says that he is a trustee of another, must, in a court of 
 law, be treated in all respects as the party in the cause. 
 If there is a defense against him, there is a defense against 
 the cestui que trust who uses his name, it) The following 
 instance shows the strictness with which the party on the 
 record is in some cases treated as the real party to the 
 suit. 
 
 (j) The admission of equitable replications makes it now often possible for 
 B. to dispose of such defenses. 
 
 (/) « Jibson V. Winter, 5 B. & Ad. 102. 
 
 in the name of the trustee, though 
 the beneficiary is in possession. 
 Jones V. Cole, 2 Bailey, 330 ; Munn 
 V. Lee, 5 Ga. 236 ; Hoover v. Geesa- 
 man, 17 Serg. & R. 251 ; Foage v. 
 Bell, 8 Leigh, 604; Thompson v. 
 Ford, 7 Ired. 367 ; Jones v. Strong, 
 6 Ired. 367 ; Guphill v. Isbell, 8 
 Rich. L. 463; Schley v. Lyons, 6 
 Ga 530; McRaeny v. Johnson, 2 
 Fla. 520 ; Parsons v. Boyd, 20 Ala. 
 112; Newman v. Montgomery, 5 
 How. (Miss.) 742; Pressley V. Strib- 
 ling, 24 Miss. 527 ; Daniel v. Dan- 
 
 rule carried. Gary v. Whitney, 48 
 Me. 516; Taylor v. King, 6 Munf. 
 358 ; Matthews v. McPherson, 65 
 N. C. 189 ; Reece v. Allen, 10 111. 
 241 ; Phillips V. Ward, 51 Mo. 295. 
 A trustee in possession must sue 
 for all injuries to the possession. 
 Davis V. Charles River R. R. Co , 
 II Cush. 506 ; Woodruff v. Orange, 
 32 N. J. 49. If the beneficiary is 
 entitled to the possession, he is also 
 entitled to maintain such suit in 
 Pennsylvania. School Directors v, 
 Dunkleberger, 6 Pa. St. 29 ; Pres- 
 
 byterian Cong. V, Johnston, i Watts iel, 6 B. Mon. 230. 
 
 & S. 56. And if the beneficiary is 
 in the actual possession he may 
 maintain such action. Cox v, 
 Walker, 26 Me. 504 ; Stearns v. 
 Palmer, 10 Mete. 32. 
 
 But a trustee of personal estate 
 entitled to its possession may main- 
 tain action for its delivery to him 
 even against the beneficiary. Beach 
 V. Beach, 14 Vt. 28 ; Western R. R, 
 Co. V. Nolan, 48 N. Y. 513; White 
 V. Albertson, 3 Dev. 241 ; Guphill 
 V. Isbell, 8 Rich. L. 463; Ryan v. 
 
 In suits in equity, in relation to 
 the trust estate by or against stran- 
 gers, both the trustees and all the 
 beneficiaries must unite to repre- 
 sent the whole interest therein, 
 Dunn V. Seymour, 3 Stockt. 220; 
 Harris v. McBane, 66 N. C. 334; 
 Sprague v. Tyson, 44 Ala. 338; 
 Martin v. Reed, 30 Ind. 2i8. 
 
 A trustee contracting without any 
 reference in the contract made to 
 the beneficiaries or to the trustee- 
 ship may sue and defend thereon 
 
 Bibb, 46 Ala 343 ; Presley v. Strib- in his own name. Brown v. Cherry, 
 
 ling. 24 Miss. 257; Pace v. Pierce, 56 Barb. 635 ; Rawlings v, Fuller, 
 
 49 Mo. 393. All actions for injury 31 Ind. 234; Linch v. Thomas, 27 
 
 to the personal property, its deten- 111. 457. 
 tion or conversion must be brought
 
 56 PARTIES TO ACTIOXS. 
 
 The Statute of l''iaiuls re(]iiircs that a contr.ict lor the 
 sale of i;-oocls should be signed by the party to be char^^^cd, 
 or his agent. It is also settled on this statute that one 
 contracting party can not sign as agent for the other. 
 An auctioneer signed as agent for tiie party to be charged, 
 f". r., the purchaser of the goods. His signature was in 
 itself sufficient ; but the purchaser was sued for the price, 
 not in the name of the vendor but in that of the auctioneer, 
 (;/) who of course sued for the benefit of the vendor. It 
 was held that in such an action the contract could not be 
 considered signed by an agent of the defendant's, since it 
 was signed bv the plaintiff, who must be treated as a 
 party to the contract. 
 
 The general principle of the courts of law is to disre- 
 g^ard equitable interests. A defendant may have an 
 answer to a plaintiff's claim, which is perfectly good in a 
 court of equity, and 3-et can not be made in a court of law, 
 and a plaintiff who could completely dispose of a 
 [45] defendant's answer to his case in a court of equity, 
 may not be able to reply to it in an action at law ; 
 but the application of this principle has by degrees been 
 modified. 
 
 Independently of statute the common law courts are 
 often compelled to recognize the rules of equity. 
 
 Thus, if an action be brought by a vendee for the 
 deposit, the court will inquire whether the vendor's title 
 would be good in equity. So, as the right of a person 
 who has insured a ship and then sold it before loss, to sue 
 upon the policy, depends upon the question whether or 
 not he sues as a trustee for the vendee, such a person 
 would not be allowed to recovei in an action unless he is 
 suing as a trustee, {x) In cases ttirning on the bank- 
 ruptcy laws it frequently becomes necessary to take 
 equitable as well as legal rights into consideration. If, 
 for example, the bankruptcy of the plaintiff is pleaded, it 
 is a good reply, independently of the statute allowing 
 equitable replications, that the plaintiff is suing merely as 
 
 {u) Farebrolhev V. Simmons, 5 15. & Aid. 33, and see CliarterV. 
 (.r) Powles V. Innes, 1 1 .M. tV \\. 10.
 
 GENERAL RULES. 
 
 57 
 
 a trustee, ( j) since those things onl}- pass to a trustee in 
 bankruptcy in which the bankrupt is beneficially inter- 
 ested, [s) Statutes have still further extended the recog- 
 nitirm of equitable interests, and in so far have broken in 
 upon the rule that the courts look only to the parties on 
 the record. 
 
 The Common Law Procedure Act, 1854, enacts that {a) 
 " it shall be lawful for the defendant or plaintiff in re- 
 plevin in any cause in any of the superior courts in which, 
 if judgment were obtained, he would be entitled to relief 
 against such judgment on equitable grounds, to plead the 
 facts which entitle him to such relief by way of defense, 
 and the said courts are hereby empowered to receive such 
 defense by waj- of plea," {b) and that " the plaintiff 
 may reply, in answer to any plea of the defend- [46] 
 ant, facts which avoid such plea upon equitable 
 grounds." (r) 
 
 Many defenses may now be pleaded which could not, 
 before the statute, have been raised at common law. 
 Thus, where a defendant has been made liable only by 
 the occurrence of some mistake ; {d) where a person who 
 is a surety does not appear to be so on the face of the 
 instrument; (c) and in other cases, defenses can be raised 
 which would not formerly have been available in an 
 action. The rights, again, and liabilities of assignees of 
 del)ts who must sue in the name of their assignors, can 
 now often be made to appear on the pleadings, and hence 
 the rule, that each case must be decided as if the parties 
 on the record were the only persons interested, often fails 
 to h(;ld good. This effect of the admission of equitable 
 picas, tvc, is most clearly seen in the rules as to — 
 
 ( v) Sims V. Thomas, I2 A. & E. 535 ; Boyd v. Mangles, lA M. & W. 337 ; 
 Tainhim v. Hurst, S M. & W. 743 ; D'Arnay v Cliesneau, 13 M. & W. 796. 
 
 (2) .See Chapter IX. 
 
 (d) C. L. P. A., 1354, ss. 33, 85. See, also, Policies of Assurance Act, 1867 
 (30 & 31 Vict. c. 144). 
 
 (l<) C. L. P. A.. 1854, s. 83. 
 
 (<■) Common Law Procclurc Act, 1854, s. 85. 
 
 (</) Wake V. Ilarrnp, i II. &. C. 202 ; 30 L.J. 273, Ex. ; Steele v. Haddock, 
 :o Ex. 643 ; 24 L. J. 78. V.\. 
 
 le) I'oolcy V. Harradine, 7 E. i<: IJ. 431 ; 26 L. J. is^^i, Q. H.
 
 58 PARTIES TO ACTIONS. 
 
 Set-off. — A defendant sncd for a " debt " due to the 
 plaintiff, may set-off debts due from the plaintifil to a 
 trustee for the defendant ; (/) and a debt due to the de- 
 fendant from the person on whose behalf the plaintiff is 
 suing as trustee, {g) But the defendant can not set-off 
 debts due from the plaintiff where the latter is suing- as 
 trustee for a person to whoai he has assigned the debt for 
 which he is suing, and the set-off has accrued due subse- 
 quently to notice of the assignment, and in respect of an 
 independent transaction. Such a set-off may be met by a 
 replication that the plaintiff is suing on behalf of the 
 assignee of the debt, {h) 
 
 The effect, therefore, on the right of set-off ol 
 [47] admitting equitable pleas is, in an action by A. 
 against X. for a debt, as follows : — 
 
 X. may set-off against the claim of A. a debt due from 
 A., not to X., but to M., a trustee for X. 
 
 X. may set-off against the claim of A. a debt due to X., 
 not from A., but from M. (the real plaintiff) on whose be- 
 half A. is suing. 
 
 X. may not set-off a debt due to him from A., if A. is 
 really suing on behalf of M. when the set-off has become 
 due, subsequently to notice given to X. of the assignment, 
 and in respect of an independent transaction. 
 
 But X. may set-off against the claim of A. (even though 
 A. is suing as trustee for M.) debts due from A. to X. 
 which have become due before notice of an assignment to 
 M. of the debt for which the action is brought, {if 
 
 (/) Cochrane v. Green, 9 C. B., N. S., 448 ; 30 L. J, 97, C. P. 
 {g) Agra and Masterman's Bank v. Leighton, L. R. 2 Ex. 56; 36 L. J. 33, 
 Ex. 
 
 {h) Watson v. Mid-Wales Rail. Co., L. R., 2 C. P. 593 ; 36 L. J. 285, C. P. 
 \i) Cavendish v. Geaves, 24 Beav. 163 ; 27 L. J. 314, Ch. 
 
 I. The defendant must own and Beall, 2 Kelly, 134. And he must 
 
 control the claim he proposes to support it as fully as though he 
 
 set off, so that the plaintiff is, as to were bringing his separate action 
 
 that claim, his debtor. McGraw v, upon it. Kelly v. Garrett, i Oilman, 
 
 Pettibone, 10 Mich. 530; Kimble 649. 
 
 V. Glover, 13 Rich. 191 ; Tinsley v. His right to sue on such demand
 
 GENERAL RULES. 
 
 bQ 
 
 From the words of the Common Law Procedure Act, 
 1854, it might be inferred that any defense or answer 
 which is available in a court of equity could be pleaded 
 m an action. But this is not so ; for the right to use equit- 
 able pleas, replications, &c., is subject to the following re- 
 strictions : — 
 
 First. Courts of law will allow pleadings upon equitable 
 grounds only where by the judgment at law they can do 
 complete and final justice and settle all the equities be- 
 tween the parties ; they have no jurisdiction to pronounce 
 a temporary or conditional judgment, and no process by 
 which terms or conditions can be enforced. Accordingly, 
 they will allow a pleading on equitable grounds only 
 where a court of equity under similar circumstances 
 would decree an absolute, unconditional, and perpetual 
 
 set off may be either legal or 
 equitable Bell v. Horton, i Ala. 
 413; Carew v. Northrup, 5 Ala. 
 367. And he may set off a demand 
 which he absolutely owns, not 
 having the strict legal title. Mur- 
 ray V. Williamson, 3 Binn. 135. 
 
 Whenever the assignee of any 
 bond, bill or note can recover in his 
 own name as assignee and appro- 
 priate the proceeds to his own use, 
 he may set off such demand. Farr 
 V. Hemmingway, 2 Const. (S. C.) 
 
 753- 
 
 A defendant who has acquired 
 debts simply to set them off, will 
 not be allowed to do so. Strauss 
 V. Eagle Ins. Co., 5 Ohio St. 59; 
 Adams v. McGrew, 2 Ala. 675 ; Mc- 
 Dade v. Mead, 18 Ala. 214. 
 
 An agent who did not disclose 
 his principal, and is liable on the 
 contract, cannot, when sued, set 
 off plaintiff's debt to such princi- 
 pal. Forney v. Shipp, 4 Jones 527. 
 
 And when a principal i.9 sued, h( 
 cannot set off the plaintiff's debt tc 
 his agent. Carmen v. Garrison, 13 
 Pa. St. 158. 
 
 In an action against a defendant 
 individually, he cannot set off a 
 debt due him as an administrator. 
 Thomas v. Hopper, 5 Ala 442 ; 
 Wood v. Hardy, 11 La. Ann. 760. 
 
 When an administrator sues for 
 a debt which accrued after the 
 death of the intestate, the defendant 
 cannot set off a debt due him by 
 the deceased before his decease. 
 Fry V. Evans, 8 Wend. 530; Wolf- 
 ersbergcr v. Buchcr, 10 Serg. & 
 R. 10; Shaw V. (Jookin, 7 N. H. 
 l6«; Brown v. Garland, I Wash. 
 (Va.) 217; Burton v. Chiin, Hard. 
 (Ky.) 252; Mills v. Lumjjkin, i Ga. 
 5ri5 Rapier v. Holland, Minor, 
 176; Dayhuff v. Dayhuff, 27 Ind. 
 158; Cook V. Lovell, 11 Iowa 81; 
 Bizzell V. Stone, 12 Ark. 378.
 
 6o PARTIES TO ACTIONS. 
 
 [48] injunction ; (/•) that is, where a judgment in favor 
 of the plaintiir, or in favor of the defendant (the 
 only decision which a court of law can give), would 
 dispose of the whole matter as between the parties to the 
 action. It is, however, enough if the equitable grounds 
 entitle the defendant to absolute and complete relief against 
 the jilaintifl', although against other parties, strangers to 
 the action, equities remain unsettled. (/) But an equitable 
 jileading will not be allowed where it is impossible to 
 do justice without bringing other persons before the 
 court, {in) 
 
 Many defenses, therefore, available in equity can not be 
 pleaded, because a mere judgment for the plaintiff" or for 
 the defendant would not dispose of the matter between the 
 parties. Thus, in an action on a covenant in a lease brought 
 for rent and for not repairing a defense on equitable 
 grounds of a part performed covenant to surrender, can 
 not be pleaded, because in equity the defendant would be 
 entitled to an injunction only upon terms of executing the 
 surrender. (;/) So a plea that the defendant signed a writ- 
 ten contract under a mistake as to its contents can not be 
 allowed, because the remedy in equity would be to reform 
 he contract, {o) and numerous other examples might be 
 ^iven of pleas which on the same principle can not be 
 pleaded. 
 
 Secondly. An equitable replication, &c., can not be al- 
 lowed w^hich sustains an equitable claim. If a plaintiff 
 brings an action to which there is a good defense, but 
 there are matters showing that he has a good equitable 
 claim, he should go to a court of equity in the first in- 
 stance. (/) For " an equitable replication can not be 
 pleaded to a legal plea, if it merely shows that the plain- 
 
 (/') Bullen, Pleadinfijs, 3rd ed., 568 ; Wodehouse v. Farebrother. 5 E. & B. 
 277 ; 25 L. J. i8, Q. B. ; Mines Royal Society v. Magnay, 10 Ex. 489 ; 24 L. 
 J. 7. Ex. ; Jeffs v. Day, L. R. i, Q. B. 372 ; 35 L. J. 99, Q. B. 
 
 (/) Sloper V. Cottrell, 6 E. & B. 501 ; 26 L. J. -], Q. B. 
 
 [m) Schlumherger v. Lister, 30 L. J. 3, Q. B. : 2 E. & E. 870. 
 
 («) Mines Royal Society v. Magnay, 10 Ex. 489 ; 24 L. J. 7, Ex. 
 
 (o) Perez v. Oleaga, 11 Ex. 506 ; 26 L. J. 65, Ex. 
 
 [p) Hunter v. Gibbons, i H. & N. 459, See judgment of Bramwell, B. 
 %(A ; Bartlett V.Wells, I B. & S. S43 ; judgment of Crompton, J.
 
 GENERAL RULES. t\ 
 
 tiff has some right in equity which is ground for applying 
 to a court of equit}'." 
 
 The meaning of this is, that though it is now [49] 
 possible to raise equitable defenses, &c., in an action 
 at law, it is not possible to commence an action in virtue 
 of a merely equitable right. The law, to express the mat- 
 ter technically, allows equitable pleadings, but does nol 
 allow an equitable declaration. Hence, a plaintiff may 
 show, on equitable grounds, that the defendant's plea or 
 defense is inadmissible. But he can not make any reply to 
 the defendant which shows that his own claim depends 
 not on a legal, but on an equitable right. The statute has 
 neither directly nor indirectly trenched upon the rule that 
 no action can be brought except for the infringement of a 
 legal or common law right. 
 
 Thus, in an action of trespass for digging minerals 
 under the plaintiff's land, the defendant pleaded the 
 Statute of Limitations, and the court refused to allow a 
 replication that the trespasses were fraud ulentl}^ c(mi- 
 cealed until within six years, because the replication 
 showed that the legal right was barred, and the only 
 right, if any, was a right in equity to an account, [q) So 
 in an action for goods sold, a replication on equitable 
 grounds to the plea of infancy, that the defendant induced 
 the plaintiff to supply the goods by fraudulently repre- 
 senting himself to be of full age, was held bad as setting 
 up matter for a suit in equity instead of a cause of action 
 at law ; (r) and in an action against an executor for goods 
 sold to the testator, a replication on equitable grounds to 
 a plea of the Statute of Limitations, that the causes of 
 action accrued six years before the testator's death, and 
 that he bequeathed to the defendant sufficient money on 
 trust to pay his debts, was held bad. {s) 
 
 In some of these cases there were also other grounds 
 for the decisions given, but they all recognise the prin- 
 ciple, that where a plaintiff's case depends upon an 
 
 (q) Hunter v. flihlions, I II. & N. 459 ; 26 L. T- I. Ex. 
 (r) Bartlettv. Wells, r H. ^t S. 836; 31 L. J. 57, Q. B. 
 (/) Gulliver v. Gulliver, i H. & N. 174 ; 25 L. J. 341, Ex.
 
 62 PAKriILS TO ACTIONS. 
 
 [50] equitable claim, he must go to a court of equity, and 
 not bring an action at law. (/") 
 
 Rule 4.-7-An action may be brought for every 
 infringement of a " legal " (?/) right/ 
 
 " For all injuries done to a man's person, reputation or 
 property, he shall have an action." [x) For everything, 
 therefore, which is recognized by the common law as an 
 " injury " in the widest sense of that term, as including 
 within it both breaches of contract and torts, there is a 
 right of action ; or, in other words, any one who has 
 suffered an invasion of his legal rights can bring an action 
 against the person by whom they have been invaded. 
 
 " If a person has a right, he must of necessity have a 
 means to vindicate and maintain it, and a remedy if he is 
 injured in the exercise or enjoyment of it, and, indeed, it is 
 a vain thing to imagine a right without a remedy ; for 
 want of right, and want of remedy are reciprocal. . . . 
 
 " Every injury imports a damage, though it does not 
 cost the party one farthing, and it is impossible to prove 
 the contrary ; for a damage is not merely pecuniary, but 
 an injury imports a damage when a man is thereby 
 hindered of his right. As in an action for slanderous 
 words, though a man does not lose a penny by reason of 
 the speaking of them, yet he shall have an action. So, if 
 
 {t) Bullen, Pleadings, 3rd ed., 566-574. 
 
 (u) See the foregoing rule as to the distinction between legal (or common 
 law) and equitable rights. 
 
 {x) Bacon, Abr., Actions, B. 
 
 I. But the private citizen must Napier v. Poe, 42 Ga. 178; Ferry 
 
 become a relator and prosecute in v. Williams, 41 N, Y, 333 ; but see 
 
 the name of the state to enforce a Sanger v. County Comrs., 25 Me. 
 
 private right which involves public 296 ; Heffner v. Commonwealth, 28 
 
 right. People V Collins, 19 Wend. Pa. St. 108; Wellington v. Peti- 
 
 58; State V. Haben, 22 Wis. 667; tioners, 16 Pick. 105; Miller v. 
 
 State V. Cincinnati, 19 Ohio. 188; Grandy, 13 Mich. 550. 
 Glencoe v. People, 78 111. 390;
 
 GENERAL RULES. 63 
 
 a man gives another a cuff on the ear, though it cost him 
 nothing — no, not so much as a little diachylon — yet he shall 
 have his action, for it is a personal injury. So, a man shall 
 have an action against another for riding over his ground, 
 though it do him no damage : for it is an invasion of his 
 property, and the other has no right to come there ; and 
 in these cases the action is brought vi et armis. But 
 tor invasion of another's franchise, trespass vi et armis 
 does not lie, but an action of trespass on the case: as 
 where a man has retornia brevium, he shall have an action 
 against any one who enters and invades his franchise, 
 though he lose nothing by it." {z) 
 
 " With respect to every description of rights " (it has 
 been said), " actual perceptible damage is not indispensa- 
 ble as the foundation of an action. It is sufficient to show 
 the violation of a right, in which case, the law will pre- 
 sume damage," {a) 
 
 The doctrine that every violation of a right, i. e., every 
 mjury, is actionable, will be found perfectly correct, if it 
 be remembered that rights are of two kinds ; i. e., that 
 while some rights are rights to have certain acts done or 
 left undone by other persons, other rights are merely 
 rights not to be materially or perceptibly damaged by 
 certain acts or omissions on the part of others. To put 
 the same thing in another form, some acts are infringe- 
 ments upon rights, /. e., are actionable, whether they 
 inflict damage or loss upon the person aggrieved or not , 
 other acts become infringements on rights, i. e., are 
 actionable, only in consequence of causing actual damage 
 or loss. 
 
 The same distinction is sometimes put in a different 
 form. To make up a cause of action there must exist, 
 it is said, both damage and injury, and as an action docs 
 not lie for damage without injury, so also it does not lie 
 for injury without damage. 
 
 («) Ash})y V. White, i Smith, L. C, 6th ed., 249. 250. per IIoi.t, C. J. 
 (a) Lambert v. Bessey, 4 Edw. IV., folio 7, cited Smith v. Kenrick, 18 L.J. 
 • 75. C. P.
 
 64 'RU^TJES TO ACTIONS. 
 
 But in order to make the distinction as thus stated 
 hold good, the word chunagc must be used ambiguously, 
 as meaning sometimes actual perceptible loss, and some- 
 times what is called damage implied by law ; 
 [52] /. (•., loss whicli. though it may not actually exist, is 
 assumed by a tiction of law always to exist as the 
 result of certain proceedings; c. g., a breach of contract. 
 an assault, cSlC. : and, though it is true that no action lies 
 except for some act accompanied either by actual damage 
 or by damage implied by law, still the fact remains, that 
 certain acts are considered by the law always to cause 
 damage (whether they really cause it or not), and, there- 
 fore, are always actionable ; whilst other acts are con- 
 sidered injurious, and are therefore actionable only when 
 they cause actual or perceptible damage. 
 
 Hence, in whatever shape the distinction insisted upon 
 be expressed, it comes, in fact, to the same thing ; i. e., 
 that some acts are injurious and actionable, whether they 
 cause damage or not, whilst other acts become injuries, 
 and therefore actionable, only on account of the damage 
 which they cause. 
 
 " There is no doubt," it has been said, " that the 
 right of action accrues whenever a person interferes with 
 his neighbor's rights, as for example, by stepping on his 
 land, or ... . interfering with his right to vote, 
 and this though no actual damage may result. But for a 
 man to dig a hole on his own land is a perfectly lawful 
 act of ownership, and it only becomes a wrong if it injures 
 his neighbor, and since it is the injury itself which gives 
 rise to the right of action, there can be no right of action 
 unless the damage is of an appreciable amount. A person 
 may build a chimney in front of your drawing-room, and 
 the smoke from it may annoy you, or he may carry on a 
 trade next door to your house, the noise of which may be 
 inconvenient ; but unless the smoke or noise be such as to 
 do you appreciable damage, you have no right of action 
 against him for what is in itself a lawful act." {b) 
 
 {b) Smith V. Tbackerah, L. R. i. C. P. 566 ; per Erle. C. J.
 
 GENERAL RULES. 65 
 
 It is impossible to lay down any decisive test hy 
 which to distinguish acts which are injuries, and there- 
 fore actionable in themselves, from acts which are 
 not injuries in themselves, but which become in- [53] 
 juries, and therefore actionable, only when they 
 cause damage. 
 
 The characteristic by which some acts which are 
 injuries in themselves may be known is, that they would, 
 it continued, bar the legal rights of the person aggrieved 
 by them. Thus a trespass on a person's lands, interference 
 with the rights of commoners, the diversion of a stream of 
 water, would, if repeated, bar the legal rights ot the land- 
 owner, the commoner, or the persons entitled to the use 
 of the stream. Hence, for such acts an action may be 
 brought by a person aggrieved, even though he suffers no 
 material damage or loss thereby, ic) 
 
 The meaning of the rule, as well as the difference 
 between acts which are actionable in themselves, and acts 
 which are actionable only when the}' cause damage, is 
 best seen from examples. 
 
 A breach of contract is always an injury, and, therefore, 
 upon the breach of a contract, a right of action vests 
 without any special damage, and the plaintiff" is entitled 
 to have a verdict for nominal damages, even though he 
 docs not prove any actual damage at the trial, {d') 
 
 These nominal damages are so pure a fiction that 
 when the claim {e.g., a debt) due upon a contiacthas been 
 paid, the creditor can not sue for nominal damages for its 
 detention. 
 
 The right to sue for every breach of contract is inde- 
 pendent of the nature of the contract sued upon. The 
 agreement may be express or implied, it may be made by 
 deed, or by word of mouth, but whatever its nature, it 
 will always give a right of action when broken. Even an 
 action in form for tort, if it be in substance an action for 
 breach of contract, will lie, even though no actual damage 
 
 (c) Ilarrop v. Hirst, I.. \\. 4, Kx. 43 ; 38 L. J. I, Ex. 
 
 (</) Marzctti v. Williams, i B. & Ad. 423, judgment of Tenterden, C. J., 
 Beaumont v. flrcalhcad, 2 C. B. 4(^4 ; 15 I.. J. 130, C. P.
 
 66 PARTIES TO ACTIONS. 
 
 has arisen from the breach ; {e) the principle being, that a 
 person who makes a contract is bound to perform it, 
 [54] and if he docs not do so, is liable to an action for 
 his nc>;lcct of duty. (/) 
 
 An assault, trespass to land, conversion of goods, or 
 the publication of a libel, are in themselves injuries, and 
 actionable, irrespective of the damage which they may 
 cause. 
 
 Acts of fraud, on the other hand, or negligence, are 
 not necessarily injurious, and only become so by reason 
 of actual damage or loss caused to the person aggrieved. 
 
 The distinction between acts actionable in themselves, 
 and acts actionable because they cause loss, is seen in the 
 diflference between libel and slander. 
 
 Libel, or the publication by one person, by means of 
 printing, writing, pictures, or the like signs, of matter 
 defamatory to another {g) is actionable, whether it cause 
 damage to the person libeled or not. Slander, or the 
 utterance by one person, by means of words spoken, of 
 matter defamatory to another (//) is (subject to certain 
 exceptions) not actionable, unless actual loss is caused to 
 the person slandered. In other words, a man has a i-ight 
 to insist absolutely, that defamatory matter tending to 
 disparage him shall not be published in print, and if such 
 matter be published, he may bring an action for such pub- 
 lication irrespective of its results. But a man has not a 
 right to insist absolutely that nothing defamatory shall be 
 said of him. The whole extent of his right is the right 
 not to be damnified by the utterence of defamatory 
 matter. He can not, therefore, bring an action for 
 slander unless the slander has caused him actual loss. 
 To publish in print of another, that he is a low fellow, a 
 blackguard, a disgrace to the town, &c., is actionable . to 
 
 (<r) Marzetti v. Williams, I B. & Ad. 41/]. 
 
 (/) Compare Bally v. De Crespigny, L. R. 4, Q. B. 185. Canham v. Barry 
 24 L. J. 106, C. P., judgment of .Maule, J. ; Mayor of Berwick v. Oswald 3 E 
 i B. 665 ; 23 L. J. 24. Q. B. 
 
 (^) 3 Bl. Com. T25. 
 
 <h) Ibid. 123 ; Bullen, Pleadings. 3rd ed., 301, 302.
 
 GENERAL RULES. 67 
 
 say tne same things of another, is not actionable, unless 
 actual damage result to him from the language used. 
 
 Causes of Action arising beyond the Jurisdiction. 
 
 A person may have a cause of action against an- [55] 
 other on account of matters which took place either 
 in part or wholly without the jurisdiction of our courts ; 
 e. g., for the breach of a contract made in Scotland, or for 
 an assault committed in France. 
 
 The general principle is, that a local {i) action can not 
 be brought in respect of a cause of action arising beyond 
 the jurisdiction of our courts ; but that a transitory action 
 can be brougnt b}' any person whatever in respect of 
 causes of action arising either wholly or in part beyond 
 their jurisdiction. 
 
 The effect of this principle is, that an action does not 
 lie for any wrong connected with land situated out of Eng- 
 land, — e. g., for the forcible entry into a house in Canada ; 
 but that an action does lie for the breach of any contract 
 made or assault committed, — e. g., in Scotland or in 
 France. 
 
 Nothing depends upon the nationality of the par- 
 ties, (jy 
 
 The right of an Englishman to sue a foreigner, or ol 
 one foreigner to sue another, or to sue an Englishman, for 
 the breach of a contract made abroad has long been com- 
 pletely estabHshed. 
 
 The right of aliens to sue, and their liability to be 
 sued in our courts for wrongs committed abroad, is now 
 equally well settled. " The right of all persons, whether 
 British subjects or aliens, to sue in the English Courts for 
 damages in respect of torts committed in foreign countries, 
 has long since been established ; and as is observed in the 
 
 (j) As to alien enemies, see p. 
 
 I. A contract to which both par- Allen, 450; Wclll)orn v. Tindell, I 
 ties are aliens maybe enforced in a Mo. 215. So an alien may sue any 
 «tate court. Roberts v. Kniyhts, 7 personal action in the United States
 
 68 
 
 PARTIES TO ACTIONS. 
 
 notes to ^^ostvn v. Fabrigas, (/) there seems to be no rea- 
 son why aliens should not sue in England for personal in- 
 juries done to them by other aliens abroad, when such in- 
 juries are actionable both by the law of England and 
 [56] also by the law of the country where they are com- 
 mitted, and the impression which long prevailed to 
 the contrary seems to be erroneous." (/) 
 
 (/[•) I Smith, L. C, 6th ed., 656. 
 
 (/) The II alley, L. R., 2 P. C. 203 ; per Curiam. 
 
 courts the same as if he were a 
 citizen. Taylor v. Carpenter, 3 
 Story, 458 ; Coffeen v. Brunton, 4 
 McLean, 516 ; and he does not lose 
 such right by residence in one of 
 the stales. Breedlove v. Tricolet, 
 7 Pet. 413. 
 
 An alien has no rights of imino- 
 vable property except such as are 
 given by each state. Hauenstein 
 V. Lynham, 100 U. S. 483 ; Scott v. 
 Sandford, ig How. 399; Heirn v. 
 Bridault, 37 Miss. 221 ; Atkins v. 
 Kron, 5 Ired. Eq. 207 ; Stillman v. 
 Dunklin, 48 Ala. 175. He may sue 
 for the rights guaranteed to him by 
 treaty, and may maintain an action 
 for the recovery of property he is 
 merely permitted to hold. Den v. 
 Brown, 7 N. J. L. 333 ; De Laveaga 
 V.Williams, 5 Sawyer, 574; Rouche 
 v. Williamson, 3 Ired, 145. But an 
 alien widow cannot recover dower 
 in lands which her husband, also 
 an alien, held under a statute. 
 Connolly v. Smith, 21 Wend. 59. A 
 plea of alienage, if imposed to a 
 real action, goes in general to de- 
 feat the right of action altogether. 
 White V. Sabarrego, 23 Tex. 243. 
 The plea of alienage ought to di- 
 rectly aver that the person is an 
 alien and that he was born within 
 
 the allegiance of a foreign state 
 and out of the allegiance of this 
 state. Coxe v. Gulick, 10 N. J. L. 
 329 ; and that such was his charac- 
 ter and status when the suit was 
 brought Elgce v. Lovell, i Woolw. 
 C. C. 1 10 The alienage of a plaintiff 
 is a cause in abatement, except that 
 in a real action alien enemy may 
 be pleaded either in bar or in 
 abatement. Leonie v. Taylor, 12 
 Mass. 8 ; Hutchinson v. Brock, li 
 Id. 119. An alien, if not an alien 
 enemy, may sue in foreclosure of a 
 mortgage, the debt being consid- 
 ered the principal and the land the 
 incident. Hughes v. Edwards, 9 
 Wheat. 489. 
 
 An alien residing within the 
 limits of a state is entitled to the 
 benefit of its insolvent laws. Judd 
 v. Lawrence, i Cush. 534. 
 
 An alien found within the state 
 is liable to be sued in its courts on 
 all his contracts, wherever made. 
 Barrel v. Benjamin, 15 Mass. 354. 
 And he may by complying with 
 the laws of congress remove the 
 suit to the federal courts, but is not 
 entitled to a dismissal of the suit on 
 the ground that it was improperly 
 brought in the state court, Welve 
 v. Duroc, 15 La. Ann. 66.
 
 GENERAL RULES. 
 
 69 
 
 Foreigners can be sued and (it is presumed) sue in this 
 country for Avrongs committed on the high seas. (;//) 
 
 The statement that an action always lies in our courts 
 for transitory matters, whatever the place in which the 
 grievance was committed, must be taken, as regards both 
 actions ex contractu and actions ex delicto, subject to 
 certain limitations. 
 
 A person may bring an action on a contract made 
 abroad, but the courts here in judging of the validity ot 
 the contract will follow the law with reference to which 
 the parties may be presumed to have contracted ; i. e. (in 
 almost all cases), the law of the country in which the con 
 
 (w) Submarine Telegraph Co. v. Dickson, 33 L. J. 139, C. P. ; 15 C. B., N 
 S. 729- 
 
 In Taylor v. Carpenter, 2 Woodb. courts at home for us to resort to. 
 & M. I, Judge Woodbury, in a case * * * * * * * 
 for the infringement of a foreign- "An alien is not now regarded 
 er's trade-mark by a citizen, very as the outside barbarian ; he is con- 
 pointedly expresses an aHen's sidered in China, and the struggle 
 powers to sue in our courts. He in all commercial countries, for 
 says : " The exceptions to this some centuries, has been to cn- 
 position, as to the rights of for- large his privileges and powers as 
 eigners, I take to be two-fold, if no to all matters of property and 
 more. One is that it is not recipro- trade. * * * por many years 
 cal, no such right being granted to it has been held that pleas of 
 exist, and which may be prosecuted alienage are to be discouraged, and 
 by our citizens in Great Britain, are a defence not favored in the 
 where this plaintiff resides. But law. * * * Our duties are such 
 this might be a good reason for to redress wrongs to foreigners that 
 legislation by congress not allowing they are, by the constitution, al- 
 aliens to have any rights or to lowed to sue in the United States 
 prosecute them in this court unless courts, so as to secure greaier ex- 
 they are reciprocal and allowed to emption from local partialities or 
 our people in their respective prejudices against them, and a re- 
 countries, fusal of justice to them in judicial 
 
 " But no such discrimination has tribunals is one just cause of war. 
 
 ever been made by congress, and 4 Elliott Deb. i67. 
 
 no court could make it by mere " The eleventh section of the 
 
 construction without an exercise of Judiciary act confers the same 
 
 judicial legislation. The cannibal power on this court to sustain suits 
 
 of the Fejces may sue here in a where an alien is a party, as where 
 
 personal action, though having no a citizen is." * * *
 
 70 PARTI/:S TO ACTIOXS. 
 
 tract was inadc. On the other hand, (luestions (.1 ])r{)ce- 
 dure are governed by the hiw of the country in which the 
 action is broui^ht. Hence, the general rule is, that in in- 
 terpreting a contract made abroad, the courts Avill follow 
 what is called the lex loci, /. c, the law of the place in 
 which the contract was made, {n) But, on the other hand, 
 as to questions of procedure, they are governed by the 
 lex fori, i. e., the law of the country in which the action 
 is brought. " The distinction that is laid down in all cases 
 of this description is between the cause of action which is 
 to be judged of with reference to the law of the country 
 where it originated, and the mode of procedure which 
 must be adopted as it happens to exist in the country 
 where the action is brought." {o) " The rule which applies 
 to the case of contracts made in one country, and put in 
 suit in the courts of law of another country, appears to be 
 this, that the interpretation of the contract must be gov- 
 erned by the law of the country where the contract was 
 made. The mode of suing, and the time within 
 [57] which the action must be brought, must be gov- 
 erned by the law of the country where the action is 
 brought." (/)' 
 
 For example, a contract made in France, (q) or in 
 Scotland, (r) is held valid here if valid in France or 
 Scotland ; and invalid here if invalid in France or Scot- 
 land. On the other hand, if barred here by the Statute 
 of Limitations, it can not be sued upon in our courts, 
 even though in France or in Scotland it would not be 
 barred by any Statute of Limitations, {s) 
 
 (k) Lloyd V. Guibert, 35 L. J. 74, Q. B. ; L. R., i Q. B. 115 (Ex. Ch.). 
 
 (0) I Smith, L. C, 6th ed., 657. 
 
 (/) Trimbey v. Vignier, i Bing. (N. C.) 159, judgment of Ti.ndal, C. J. 
 
 (g) Ibid. 
 
 (r) Briti-,h Linen Co. v. Drummond, lo B. & C. 903. 
 
 (j) Ibid. ; De la Vega v. Vianna, i B. & Ad. 284. 
 
 I. Robinson v. Campbell, 3 4 Conn. 47. Even where the action 
 
 Wheat. 212; Hinkley v. Mareau, 3 is removed while the rights of the 
 
 Mason, 88; Smith v. SpinoUa, 2 parties are governed by the local 
 
 Johns. 198; Atwater v. Townsend, law, the form is controlled by the
 
 GENERA L RULES. 71 
 
 It is doubtful whether, if an Englishman contracts with 
 a foreigner abroad to do an act not contrary to the law 
 of a foreign country, but contrary to the law of England, 
 the foreigner may maintain an action in England. (/) It 
 appears, however, clear that " as to foreign law, which 
 we respect, there has always been an exception of foreign 
 laws in conflict with our own laws on subjects of religion 
 and morality." {ii) 
 
 A person may sue here for a tort committed abroad, 
 provided that the act complained of is a tort (or at least 
 unlawful), at the place where it was done, and is also a 
 tort according to English law. But no one can bring an 
 action for tort in our courts for any act which is not both 
 unlawful at the place where it was done, (;i-) and also a 
 tort here, iz) 
 
 It is settled, that an action lies in England for a tort 
 committed abroad ; e. g., for an assault at Naples, {a) 
 
 That an action does not lie for an act which, 
 though wrongful here, is lawful in the country [58] 
 where it is done, is established by the judgment of 
 
 (/) Santos V. Illidge. 6 C. B., N. S., 841 ; 26 L. J. 3, Q. B. ; 8 C. B., N. S 
 861 ; ^() L. J. 349, Q. B. (Ex. Ch.). 
 
 (tt) Emperor of .'\ustna v. Day, 30 L. J. 707 (Ch.), per Cami'KELL, Ch. 
 
 (x) Phillips V. Eyre, L. R. 4. Q- B. 225 ; 38 L. J. 113. Q- B. 
 
 (s) The Haliey, L. R. 2, P. C. 193 ; 37 L. J. 33, Ad. Affirmed in Ex- 
 chequer chamber. Weekly Notes, 1870, 177. 
 
 (a) Scott V. Seymour, 2 H. & C. 219 ; 31 L. J. 457, Ex. ; 2 II. & C. 231 ; 32 
 L. J. 61, Ex. (Ex. Ch.) 
 
 law of the forum. Alexandria v. 27 Iowa, 251 ; Watson v. Brewster, 
 Swan, 5 How. 83. So as to the i Pa. St. 381. And so, too, as to 
 effects of the formal parts of an in- the formal and technical rightful- 
 strument, e. g., a seal or scroll, as ness of the process the law of the 
 affecting the formal action to be court must decide. Wilcox v. 
 brought. Andrews v. Herriott, 4 Hunt, 13 Pet. 378 ; Sturgess v. Van- 
 Cow. 508; United States v. Donel- dcrbilt, 73 N. Y. 429; Leach v. 
 ly, 8 Pet. 361; Roy v. Beard, 8 Greene, 116 Mass. 534; Thornton 
 How. 451 ; Douglass v. Oldham, 6 v. Ins. Co., 83 111. 365 ; Carson v. 
 N. H. 150; Trashcr v. Evcrhardt, Hunter, 46 Mo. 467 ; Laird v. Hod- 
 3 Gill Sc. f. 234 ; Williams v. Haynes, gcs, 26 Ark. 356.
 
 72 PAKTJIiS TO ACTIONS. 
 
 the (Jueen's Bench, in Phillips v. Eyre, {U) from which the 
 Ibllowino- quotation is taken : 
 
 " It may be useful to consider what would have been 
 the effect if . . . . the lcgislatui"e of Jamaica, in an 
 ticipation of future events, had passed a statute author 
 iziui;- the acts which have given rise to this action. We 
 can not doubt that in such a case no right of action 
 would arise here. It appears to us clear that where by 
 the law of another country an act complained of is law- 
 ful, such act, though it would have been wrongful by our 
 law if committed here, can not be made the ground of an 
 action in an English Court. The rule which obtains in 
 respect of property and civil contracts, namely, that an 
 act, unless intended to take effect elsewhere shall, as re- 
 gards its effect and incidents, if a conflict of law ai'iscs 
 between the lex loci and the lex fori, be governed bv the 
 former, appears to us applicable to the case of an act 
 occasioning personal injury. To hold the contrary, would 
 be attended with the most inconvenient and startling con 
 sequences, and would be altogether contrary to the 
 comity of nations in matter of law, to which effect should, 
 if possible, be given. An act might not only be lawful, 
 but might even be enjoined by the law of another coun- 
 try, Avhich would be wrongful, and give a right ot action 
 by our law, and it certainly would be in the highest de- 
 gree unjust, that an individual who has intended to obey 
 the law binding upon him, should be held liable in dam 
 ages in another country where a different law may prevail. 
 Thus, an arrest and imprisonment might be perfectly 
 justified by the law of a foreign country under circum- 
 stances in which it would not be justifiable here. It would 
 be impossible to hold that in such a case an action could 
 be maintained in an English court. 
 
 " The same reasoning will apply where an act, 
 
 [59] though not enjoined is yet authorized and rendered 
 
 lawful by the law of the country where it is done. 
 
 There will have been no intention to inflict a wrong in 
 
 {b) L. R. 4, Q. P.. 22; ; 38 L. J. 113, Q. B.
 
 GENERAL RULES. 
 
 73 
 
 f uch a case, nor according to the law of a particular coun- 
 try will any right have been infringed." {c) 
 
 A judgment (^) of the Privy Council decides that no 
 action lies here for an act, which though a wrong in the 
 country where it was committed, would not be a wrong 
 if done in England. 
 
 " The liability of the appellants, and the right of the 
 respondents to recover damages from them as the owners 
 of the * Halley,' if such liability or right exists in the 
 present case, must be the creature of the Belgian law, and 
 the question is, whether an English court of justice is 
 bound to apply and enforce that law in a case when, 
 according to its own principles, no wrong has been com- 
 mitted by the defendants, and no right of action against 
 them exists. . . . 
 
 " It is true that in many cases the courts of England 
 inquire into and act upon the law of foreign countries, as 
 in the-case of a contract entered into in a foreign country, 
 where by express reference, or by necessary implication, 
 the foreign law is incorporated with the contract ; and 
 proof and consideration of the foreign law, therefore, 
 becomes necessary to the construction of the contract 
 itself; and as in the case of a collision on an ordinary 
 road in a foreign country, where the rule of the road in 
 force at the place of collision may be a necessar}- ingre- 
 dient in the determination of the question by whose fault 
 or negligence the alleged tort was committed. But in 
 these and similar cases, the English court admits the 
 proof of the foreign law as part of the circumstances 
 attending the execution of the contract, or as one of the 
 facts upon which the existence of the tort, or the right to 
 damages, may depend, and it then applies and enforces 
 its own law so far as it is applicable to tlic case thus 
 established ; but it is in their lordships' opinion, [60] 
 alike contrary to principle and to authority to hold 
 that an English court of justice will enforce a foreign 
 rounicipal law, and will give a remedy in the shape of 
 
 (f) rhillips V. Eyr--. I,. K. 4, Q. n. 237, per Curiam. 
 f,d) The Halley. I,. R. 2. I". C. I<>3.
 
 74 PAKTZ/tS TO ACTIONS. 
 
 damages in respect of an act which, according to iia own 
 principles, imposes no liability on the person from whom 
 the damages are claimed." (c) 
 
 It is still an open question whether — " where an act 
 which, though not authorized by the lex loci, yet gives 
 no right of action, a§ where that act is punishable by 
 criminal proceedings, but gives no right to damages, but 
 such act bv the law of this country would give a right to 
 damages, as in such a case no conflict of law would arise, 
 — an action might " [or might not], " be maintained in an 
 English court." (/) 
 
 An assault committed at Naples, (g) where it was 
 unlawful, or at any rate not shown to be lawful, has been 
 held to give a right of action here. An assault committed 
 m Jamaica {/i) under circumstances which would in Eng- 
 land give a cause of action, but authorized, though 
 subsequently to its commission, by the laws of Jamaica, 
 has been held to give no cause of action in England ; and 
 an act (/. e., the running down of a ship in Belgian waters), 
 which gave rise to a right of action in Belgium, has been 
 held not actionable here, because the facts of the case 
 would, if the accident had occurred in England, have 
 exempted the defendants from liability. (?) 
 
 The rule then that transitory actions can be brought 
 here in respect of causes of action which have arisen 
 abroad, is not applied in the same manner when the cause 
 of action is a breach of contract, as when it is a tort. 
 A contract, which would be invalid if made in 
 [61] England, generally speaking, supports an action if 
 it is valid at the place where it is made. But no 
 action can be brought for an act, which, though a tort at 
 the place where it was done, is not considered a tort by 
 English law. 
 
 ((f) The Halley. L. R. 2, P. C. 202, 203, 204, judgment of Privy Council. 
 ( /) Phillips V. Eyre, L. R. 4, Q. B. 239, 240, per Curiam. 
 ( J?- ) Scott V. Seymour, 2 H. & C. 219 ; 31 L. J. 457, Ex. ; 2 H. & C. 231 • 
 32 L. J. 61, Ex. (Ex. Ch.) 
 
 (A) Phillips V. Eyre, L. R. 4, Q. B. 225 ; 38 L J. 133, Q. B. 
 (»■) The Halley, L. R. 2, P. C. 193 ; 37 L. J. 33, Ad.
 
 GENERAL RULES. 75 
 
 Exception i. — Where an injurious act amounts to a public 
 nuisance. 
 
 A public nuisance — e. g., an obstruction to a highway, 
 a noxious trade, &c., — is an indictable offense, and the 
 proper remedy for it being an indictment, no action will 
 lie for such a public nuisance at* the suit of a private 
 person unless he has sustained damage by it over and 
 above what is common to others, {k) ' No action, there- 
 fore, lies for merely placing an obstruction on a public 
 highway, but a person damaged by driving or falling 
 against it may maintain an action for the damage done to 
 him. (/) 
 
 It may be hard to determine whether the plaintiff has 
 or has not suffered a particular damage above what is 
 common to the public. 
 
 A person who in consequence of an obstruction to the 
 highway has been hindered from access to his colliery, 
 or impeded in his business, (;«) or deprived of tenants, {n) 
 
 {/:) 3 Bl. Com. 220; Bullen, Pleadings, 3rd ed., 377. 
 
 (/) Ashbyv. White, I Smitti, L. C, 6th ed. 250, 251, judgment of HOLT, C.J. 
 
 (/w) Iveson v. Moore, I Ld. Raym. 4S6. 
 
 («) Baker v. Moore, Ibid. Compare for this and the preceding note 
 Ricket's Ca.>e, L. R. 2, H. L. 187 ; 36 L. J. 205, Q. B. ; Beckett v. Midland 
 Rail. Co., L. R. 3, C. P. 97-100, judgment of Willes, J., and Com. Dig., Action 
 on the Case, A. 
 
 I. One having a common inter- dictment. Morris and Essex R. R. 
 est in a public right cannot sue in Co. v. Pruden, 20 N. J. Eq. 536; 
 his own name and for his indi- Shed v. Hawthorne, 3 Neb. 184. But 
 vidua! benefit. Davis v. Mayor of if a private person suffers some ex- 
 New York, 14 N, Y. 514; Lansing traordinary damage distinct from 
 v. Smith, 8 Cow. 152; Currier v. that of the public at large, he has 
 West Side E. P. R. Co., 6 Blatch. his action. Irwin v. Dixion, 9 How. 
 494; Eraser v. Freelon, 53 Cal. 27; Hinchman v. Paterson H. R. 
 647; Packard v. Board, 2 Col. 350. Co., 17 N. J. Eq 82; Bigelow v. 
 And if the parties are too numerous Hartford Bridge Co., 14 Conn. 577 : 
 or the interest or right is common Thornton v. Smith, 10 R. I. 477 ; 
 to many, one may sue or defend for Pettis v. Johnson, 56 Ind. 149: 
 the benefit of all Smith v. Sworm- Hickok v. Hinc. 23 Ohio St. 523; 
 stedt, 16 How. 302 ; Bacon v. Rob- Blanc v. Klumpke, 29 Cal. 159; 
 ertson, 18 lb. 489. No action lies Prince v. McCoy, 40 Iowa, 536. 
 for a public nuisance except by in-
 
 76 PAR TIES rO ACTIONS. 
 
 or hindered from carrying tithes, {o) has been considered 
 to be injured. But where an obstruction to a highway 
 has merely delayed one person in common with others, 
 (/')orhas delayed him more frequently than others, 
 [62] {q) or has damaged his trade, (r) he has been held 
 to have suffered no special damage. 
 
 It is necessary, however, to distinguish from public 
 nuisances acts which do not amount to a public nuisance, 
 out infringe upon the rights of a class of persons. For 
 such acts each person of the class whose rights are in- 
 vaded may have an action, and if the act complained of 
 would, by its repetition or continuance, furnish evidence 
 in derogation of the plaintiff's legal rights, he may sue 
 without showing any actual personal damage to himself 
 whatever, {s) 
 
 When, therefore, a person, by wrongfully depasturing 
 cattle on a common, infringes upon the rights of all the 
 commoners, each commoner may sue him without prov- 
 ing any specific damage to himself, because " the law con- 
 siders the right of the commoner is injured by such an 
 act, and, therefore, allows him to bring an action for it to 
 prevent a wrong-doer from gaining a right by repeated 
 acts of encroachment. For whenever any act injures 
 another's right, and would be evidence in future in favor 
 of the wrong-doer, an action may be maintained for an 
 invasion of the right without proof of any specific injury." 
 (/) And so where the plaintiffs, in common with other 
 inhabitants of a particular district, enjoyed a customary 
 right at all times to have water from a spout in a highway 
 in the district, for domestic purposes, and the defendant, 
 a riparian proprietor on the stream which supplied the 
 
 {0) Hart V. Bassett, 4 Viner, 517. 
 
 {p) Winterbottom v. Ld. Derby, L. R. 2, Ex. 316; 36 L J. 194, Ex ; 
 Greasley v. Codlin, 2 Bing. 263. 
 
 {q) Caledonian Rail. Co. v. Ogilvy, 2 Macq. 22g. 
 
 (r) Ricket's Case, L. R. 2, H. L. 175 ; 36 L. J. 205, Q. B. 
 
 {s) Harrop v. Hirst, L. R. 4, Ex. 43 ; 38 L. J. r, Ex. ; Mellorv. .Ipateman, 
 I Wms. Saund, 346(Z. 
 
 (/) Mellor V. Spateman, I Wms. Saund. l^da ; Harrop v. Hirst, L. R. 4, Ex 
 46 ; judgment of Kelly, C. B.
 
 GENERAL RULES. jj 
 
 spout with water, on various occasions prevented such 
 large quantities of water irom reaching the spout, as to 
 render what remained insufficient for the needs of the 
 inhabitants, it was held that the plaintiffs, who themselves 
 had suffered no personal damage or mconvenience, 
 might maintain an action against the wrong-doer, {u) \6'^'] 
 " Where man}- men are offended by one particular 
 act, there they must proceed by way of indictment, and 
 not of action ; for in that case the law will not multiply 
 actions. But it is otherwise where one man only is of- 
 fended by that act, he shall have his action ; as if a man 
 dig a pit in a common, every commoner shall have an 
 action on the case, .... for every commoner has a 
 several right. But it would be otherwise if a man dig a 
 pit in a highway. Every man shall not bring his action, 
 but the party shall be punished by indictment, because 
 the injury is general and common to all that pass." [x) 
 
 " It is conceded that where an indictment may be 
 maintained, there is no remedy by action without proof 
 of individual damage. But the same principle does not 
 apply where the injury complained of is not one affecting 
 the public generally, but only a particular class or section 
 of persons. It is also conceded that the infringement of 
 a right furnishes a cause of action, but it is said there 
 must be damage of some sort proved particular to the 
 person who sues. Now here the jury have found that 
 the inhabitants of the district in question, and the plain- 
 tiffs among them, have a right ; and also that the defen- 
 dant has at times interfered with that right, but they have 
 also found that the plaintiffs have personally suffered no 
 loss either pecuniarily or by waste of time in going to 
 fetch water in vam or otherwise. Neitner in time nor 
 money have they incurred any appreciable inconvenience. 
 It is, however, admitted that any inhabitant who had 
 actually been injured by the circumstance that tiic supplv 
 of water had been lessened might have maintained an 
 action. But it appears to me that the mere fact of ab- 
 
 (m) Ilarrop v. Hirst, I,. R. 4, Kx. 43 ; 3? L. J. i, Ex. 
 
 (x) Ashhy V. While, 2 Smith, \.. C, 6lh ed., 239, per Hoi T, C. J.
 
 78 PARTIES TO ACTIONS. 
 
 stractinc; from time to time tlie supply of water to which 
 the inhabitants of the district were justly entitled mii;ht 
 furnish some evidence in derogation of the rights 
 [64] of those inhabitants, whether on this or that partic- 
 ular occasion they sulfered actual damage or not, 
 On that ground .... the plaintiffs are entitled to 
 recover in this action, — on the ground, that is to say, that 
 the act of the defendant was one which derogated, or 
 might hereafter derogate, from their legal right." {y) 
 
 Exception 2. — Where tlie wrong done amounts to a felony. 
 
 A person who is wronged by another can not, if the 
 wrong amounts to a felony, bring an action against the 
 wrong-doer until he has prosecuted him for the felony, {z) 
 
 If X. take goods from A. under circumstances which 
 make the act amount to larceny; or if X. make an assault 
 upon A. which amounts to a rape, A. can not sue X. in 
 an action of trover, or for assault, until A. has prosecuted 
 X. for the felony ; and if it appear at the trial that the act 
 for which the action is brought is a felony, the judge will 
 nonsuit the plaintiff, {a) 
 
 This rule does not prevent actions against others than 
 the felon himself. Thus if X. steals goods from A. and 
 sells them (not in market overt) to Y., who buys them 
 without knowing they are stolen, A. may bring an action 
 of trover against Y. although he has not prosecuted 
 X. ib) 
 
 " There is [a] rule of the law of England, viz., that a 
 man shall not be allowed to make a felony the foundation 
 of a civil action; not that he shall not maintain a civil 
 action to recover from the third and innocent person that 
 which has been feloniously taken from him — for this he 
 may do if there has not been a sale in market overt — but 
 that he shall not sue the felon ; and it may be admitted 
 
 (j) Harrop v, Hirst L. K. 4, Ex. 47, 48, jurlgment of Channel, B. 
 (2) Ashby V. White, i Smith, L. C, 6th eel., 267 ; Wellock v. Constantine. 
 « H. & C. 146: 32 L. J. 285. Ex. 
 
 (a) Wellock v. Constantine, 2 H. & C. 146 ; 32 E. J. 285, Ex. 
 
 (b) White V. Speltigue, 13 M. & W. 603.
 
 GENERAL RULES. >9 
 
 that he shall not sue others together with the felon in a 
 proceeding to which the felon is a necessary part/, and 
 wherein his c.aim appears by his own showing to 
 be founded on the felony of the defendant, ic) This [65] 
 is the whole extent of the rule." {d) 
 
 It is said that a master whose servant is killed can not 
 sue until the possible felony is inquired into, {e) 
 
 The statute 9 & 10 Vict. c. 93, for compensating the 
 families of persons killed by accidents, expressly enacts 
 that the general rule shall not apply to actions brought 
 under the statute. 
 
 Rule 5. — The same person can not be both plaintifi 
 and defendant.^ 
 
 " It is clear upon the acknowledged principles of plead- 
 ing in the Common Law, that a party can not at once be 
 a plaintiff and a defendant in the same action ; or, in 
 other words, sue himself either alone or in conjunction 
 with others." (/) 
 
 The rule that a person can not sue himself scarcely 
 requires explanation, and results immediately from the 
 fact that it is impossible for a man himself to infringe 
 upon his own rights, or do himself an injury in the legal 
 sense of the term. But as a rule of law it has the further 
 application that where two or more persons must join as 
 plaintiffs in an action, they can not bring any action in 
 
 (f) Gibson v. Minet, i II. 151. 612. 
 
 (</) Stone V. Marsh, 6 B. & C. 564, judgment of Lord Tenterden, C. J. ; 
 IVhite V. Spettii,Hie, 13 M. & W. 603 ; Lee v. Bayes, i8 C. B. 602. 
 (<f) Com. Dig., Action on the Case, B. 5. 
 (/) Story, Partnership, s. 221 ; Jones v. Yates, 9 B. & C. 532. 
 
 I. Pearson v, Nesbit, i Dev. 316; statutory action of partition. Blais- 
 
 Denny v. Metcalf. 28 Me. 89 ; I51ais- dell v. Pray, 68 Me. 270 ; Scnter v. 
 
 dell V. Ladd, 14 N. H. 130; Pierce De Bcrnal, 38 Cal. 642. Nor does 
 
 V. lioston Kive Cent Sav. Bank, the rule apply in cc|uity. Batchelder 
 
 125 Mass. 535. The rule only ap- v. Wendell, 36 N. H. 21 5 ; McDow- 
 
 plies to natural persons. Connell v. ell v. Jacobs, 10 Cal, 387. 
 Woodard, 5 Hijw. 67B ; but not to a
 
 8o 
 
 PARTfl'lS TO ACTIONS. 
 
 which it would be necessary to make one of them de 
 tcndants. 
 
 A pica to an actit)n by A. and B. against X. that B. is 
 liable with X. on the contract sued upon, is an answer to 
 :he action. So where an individual is a common partner 
 in two houses of trade, no action can be maintained by 
 the one house against the other upon any transactions 
 which take place between them whilst such indi- 
 [66] vidual is a common partner, and that, whether the 
 action be Drought during his lifetime or after his 
 death, {h) 
 
 Rule 6. — The right to bring an action can not be 
 transferred or assigned.^ 
 
 This rule is involved in the maxim, " a chose in action 
 is not assignable." 
 
 {k) Cabell V. Vaughan, i Wms. Saund. 291, n. (/) ; compare Lindley, Part- 
 nership, 2nd ed., 48S. See Rule 22. 
 
 I. For the protection of the rijjhts 
 of the assignee the law recognizes 
 the assignment of choses in action 
 and permits the assignee to bring 
 suit in the name of the assignor. 
 Hargraves V. Lewis,6 Ga. 211. And 
 the nominal plaintiff can interfere 
 only to require indemnity against 
 costs. Southwick v. Hopkins, 47 
 Me. 366. But the real owner of per- 
 sonal property in the adverse pos- 
 session of another, who claims to 
 own it, cannot sell it, having only a 
 right of action for its possession, 
 which cannot be legally transferred. 
 McGoon V. Aukeny, 11 111. 558; 
 Gilbert v. Holmes, 65 111. 555 ; Hall 
 V. Robinson, 2 N. Y. 255 ; Roger 
 Williams Ins. Co. v. Carrington, 43 
 Mich. 253 ; Price v. Talley, 18 Ala. 
 
 25. A chose in action not assign- 
 able at common law can only be 
 sued in the name of the assignor 
 for the use of the assignee. Park 
 V. Toledo. C. S. & D. Ry., 41 
 Mich. 355; Varney v. Bartlett, 5 
 Wis. 278 ; Labaume v. Sweeney, 17 
 Mo. 154; Skinner v. Lomes, 14 
 Mass 107 ; Chapin v. Vt. & Mass. 
 Ry. Co., 8 Gray, 576; Guthrie v. 
 White, I Dall. 268; McKinney v. 
 Alvis, 14 111. 34; Mt. Olivet Cem. 
 Co. V, Stubert, 2 Head 120; Mims 
 V. Swartz, 37 Tex. 14 ; Heifer v. 
 Alden, 2 Minn. 335; Elkinton v. 
 Fennimore, 13 Pa. St. 173. 
 
 The assignor will not be allowed 
 to interfere with or control the in- 
 terests of the assignee in the action. 
 Belton V. Gibbon, 17 N. J. L. y-j ;
 
 GENERA L R ULES. 
 
 8i 
 
 Property in chattels personal is either in possession or 
 else in action. 
 
 Property in possession is where a man has the en- 
 joyment, either actual or constructive, of the thing- or 
 chattel, (z) 
 
 " Property in action is where a man has not the enjoy- 
 ment, either actual or constructive, of the thing in ques- 
 tion, but merely a right to recover it by suit or action at 
 law, from whence the thing so recoverable is called a 
 thing (or chose) in action. Thus money due on a bond is 
 a chose in action, for a right to claim money vests when- 
 ever it becomes payable, but there is no possession until 
 recovered by course of law, unless payment be first vol- 
 untarily made. And so, if a man promises and covenants 
 
 (i) 2 Steph., Com., 6th ed., lo. 
 
 Gordon v. Drury, 20 N. H. 353 ; 
 Creighton v. Hyde Park, 6 Bradw. 
 274; Lunt V. Stevens. 24 Me. 535 ; 
 Deaver v. Eller, 7 Ired. Eq. 24 ; but 
 the assignor may be indemnified 
 against costs. Smith v. Wooding, 
 20 Ala. 328 ; Gordon v. Drury, 20 
 N. H. 354. The debtor cannot do 
 any act to prejudice the rights of 
 the assignee after notice of the as- 
 signment. Creighton v. Hyde Park, 
 6 Bradw. 274; Lunt v. Stevens, 24 
 Me. 535 ; St. John v. Charles, 105 
 Mass. 262 ; Howell v. Medlcr, 41 
 Mich. 642. But if the debtor ex- 
 pressly promise, after the assign- 
 ment, to become liable to the as- 
 signee, the latter may sue in his 
 own name. Simonds v. Pierce, 51 
 Vt. 469 ; Vose v. Treat, 58 Me. 383 ; 
 P'olsom V. Belknap County Ins. Co., 
 30 N. H. 240; Burrows v. Glover, 
 106 Mass. 325; Chauvin v. La- 
 barge, I Mo. 397. And both as- 
 signor and assignee cannot sue at 
 6 
 
 the same time ; if the latter has an 
 undoubted right to sue, the former 
 cannot. Peck v. Dodds, 18 Nev. 
 204; Castner v. Sumner, 2 Minn. 
 47; Johnson v. Irby, 8 Humph. 
 
 654. 
 
 Part of a demand cannot be as- 
 signed at law so as to be enforced 
 against the debtor without his con- 
 sent. Creighton v. Hyde Park, 6 
 Bradw. 275 ; Mandeville v. Welch, 
 5 Wheat. 232 ; Shankland v. 
 Washington, 5 Pet. 592 ; Lawery 
 V. Steward, 25 N. Y. 341 ; Herriter 
 v. Porter, 23 Cal. 386; Palmer v. 
 Merrill, 6 Cush. 285; Ingraham v. 
 Hall, 1 1 Serg, & R. 82 ; Orlrichs v. 
 Artz, 21 Md. 530; Knight v. W. & 
 M. Ry. Co., I Jones 358; Martin v. 
 Hayes, i Busb. 424 ; otherwise, in 
 equity, if all parties in interest be 
 joined. Grain v. Aldrich, 38 Cal. 
 518; Randon v. Barton, 4 Tex. 
 292.
 
 82 PARTIES TO ACTIONS. 
 
 with me to do any act, and fails in it, whereby I sufff r 
 damage, the recompense for this damage is a chose in 
 action. For though a right to some recompense vests in 
 me at tlie time of damage done, yet how large such 
 recompense shall be can only be ascertained by verdict, 
 and the possession can only be given me by legal judg- 
 ment and execution. A chose in action, then, is a thing 
 rather in potentia than in esse, though the owner may 
 have as absolute a property in, and be as well entitled to, 
 such things in action as to things in possession." (/') 
 \_^7'\ A chose in action has also been defined, {vt) as any 
 " personal right, not reduced into possession, but re- 
 coverable b}' law." Hence, " money due on a bond, note, 
 or other contract, damages due for breach of contract, for 
 detention or for torts, are included under the general 
 head or title of things in action. (;/) A chose in action 
 has been again described as a " right to be asserted, or 
 property reducible into possession, either by action at 
 law or suit in equity," {o) and this definition has been 
 approved of in a recent case, {p) The expression, there- 
 fore, chose in action, is used rather indefinitely, some- 
 times for the thing to be recovered by action, — e. g., 
 damages for a breach of contract or tort, — and some- 
 times for the right to recover such damages. For the 
 purpose of the present rule, it may perhaps be best de- 
 fined as a claim to be asserted by an action at law. 
 
 The rule, therefore, that a chose in action can not be 
 assigned, means in effect that no one can transfer to 
 another the right to bring an action for such a claim in 
 the name of the transferee or assignee. This holds good 
 whether the right to bring an action be only what may 
 be called a possible right of action, such as A. has against 
 X., the moment a contract is entered into by X. with 
 
 {k) 2 Steph., Com., 6th ed., 11-12. 
 
 {mi 2 Kent, Com., s. 351. See Leake, Contracts, 6, and Broom, Com., 2nd 
 ed., 42S, 429. 
 
 («) 2 Kent, Com., s. 351. 
 
 (0) I Williams, Executors, 6th ed., 738. 
 
 (/) Fleet V. Perrins, L. R. 4, Q. B. 500, 505 (Ex. Ch.). See L. R. 3, Q. B 
 • 36. In this case the nature of a cliose in action is elal)oratelv discus<',ed,
 
 GENERAL RULES. 83 
 
 him ; or an actual right of action, such as A. has against 
 X., when X. has broken a contract with A., or has done a 
 wrong to A. 
 
 Hence, the rule may thus be stated : A. can not trans- 
 fer or assign to B. the right to sue X., so as to enable B. 
 to sue X., in B's name, either on a contract made with A., 
 or for a tort done to A. 
 
 A. purchased of X, a Derby lottery ticket, on the 
 understanding that the holder of a ticket bearing [68] 
 the name of a winning horse should receive a prize 
 in money. X. received 5s. for each ticket, and was to pay 
 the prize. A. sold the ticket to B., and the horse named 
 on it won. It was held, that B. could not sue X., for that 
 though there may have been a valid assignment of A.'s 
 interest, the rule against the assignment of a chose in action 
 prevented the party interested in the ticket from suing, {q) 
 
 The assignee of an administration bond under 22 & 23 
 Car. II. c. 10, which was assigned to him by order of the 
 judge of the Court of Probate, under 20 & 21 Vict. c. yj, 
 was held unable to sue upon it ; if) and an interest in a 
 partnership, being a chose in action, can not be assigned 
 in law, so as to enable the assignee to sue as a partner, {s) 
 
 The rule that a chose in action can not be assigned, is 
 less important than it might at first sight appear, 
 because, though " by the strict rule of the ancient 
 common law, no chose in action could be assigned or 
 granted over, . . . this nicety is not now so regarded, 
 as to render [an assignment] really ineffectual. It is, on 
 the contrary, in substance, a valid and constant practice, 
 althr)ugh, in accordance with the ancient principle, the 
 form of assigning a chose in action is in the nature of a 
 declaration of trust, and an agreement to permit the as- 
 signee to make use of the name of the assignor, in order 
 to recover the possession. And, therefore, where in 
 common acceptation a debt or bond is said to be as- 
 
 {q) Tones v. Carter. 8 Q. H. 134 ; 15 L. J, 9^', Q- V,. 
 
 (r) Vt)ui)g V. Iluijhes, 26 I-. J. i6i, Kx. ; 4 II. & N. 76. See now, 21 & 23 
 Vict. c. 95, s. 15. 
 
 (s) Tenipesl v. Kilner, 15 I,. J. 10, C. I'. ; 2 (^. 1!. 300.
 
 84 PARTIES TO ACTIONS. 
 
 signed over, it must still be sued in the original creditor's 
 name, for the bringing of which suit the person to 
 whom it is transferred has sufficient authority. But the 
 king is an exception to this general rule, for he might 
 always either grant or receive a chose in action by 
 assignment ; (/) and our courts of equity {u) . . . allow 
 the assignment of a chose in action as freely and directly 
 as the law does that of choses in possession." {x) 
 
 The result is. that a person with whom a bond, or 
 other personal contract, is made, can assign his interest 
 therein to a third party, and such an assignment is in 
 many points of view recognized, not only in equity but 
 at law. But the assignee can not sue on the contract in 
 his own name, but must proceed in the name of the 
 assignor, or if the assignor be dead, in the name of his 
 personal representative ; i. e., of his executor or admin- 
 istrator, {y) Though in transferring a chose in action 
 as a debt or bond it is often found convenient to assign 
 it by a deed in legal form, with a power of attorney to 
 sue in the name of the assignor, no particular words {d) 
 or form of assignment seem to be necessary, and it is said 
 that the assignee has a right to bring an action in the 
 assignor's name, and that it is sufficient authority for the 
 attorney to commence proceedings, if he has received 
 instructions from the assignee, {a) 
 
 In consequence (mainly) of the rule that a chose in 
 action can not be assigned, combined with the principle 
 that the courts of law look only to the parties on the 
 record, it constantly happens that an action is brought in 
 the name of one person (the nominal plaintiff") who has 
 no real interest in the result, for the benefit of another per- 
 son (the real plaintiff) who is really interested. 
 
 This happens when one person stands in tjie position 
 of trustee and another in that of cestue que trust, e. g., 
 
 (/) Bretherton's Case, Dyer, 30/'. 
 
 (m) Rowe V. Dawson, Tudor, L. C. in Eq., 2nd ed., 612, 651. 
 
 (;r) 2 Steph., Com., 6th ed., 45, 46- 
 
 \y) Chilty, Pleading and Parties 10 Action, ytli ed., 17. 
 
 (z) I Tudor, L. C, 2nd ed., 653. 
 
 ( 1) Pickford v, Ewingion, 4 D. P. C. 45.
 
 GENERAL RULES. 
 
 'S 
 
 where A. is the legal and B. the equitable owner of the 
 land or where A. has assigned his interest in a debt or 
 contract to B.), or where a manager, clerk, or other 
 officer of a company is empowered by law to sue [70J 
 on its behalf. 
 
 The plaintiff on the record (/. e., the nominal plaintiff) 
 is still in, many respects the sole person whom the courts 
 of law will regard. He is the person who will be com- 
 pelled to pay costs, (c) for the real plaintiff not being a 
 party to the record can not be brought before the court, 
 and therefore can not be compelled to pay them. 
 
 " The authority of the courts at Westminster is de- 
 rived from the Queen's writ, directing them to take cog- 
 nizance of the parties mentioned in the writs respectively, 
 and thus bringing the parties before them. This being 
 so, they have no power to order any particular individual 
 to come before them at their pleasure How- 
 ever anxious, therefore, we might be to make this rule " 
 [ordering payment of costs by the real plaintiff J " abso- 
 lute, by doing so we should establish a precedent which 
 would open a wide sea to injustice. The cases where the 
 courts have interfered in this way are cases of exception. 
 They are cases where application is made for security for 
 costs, and even there the order is made in the cause, and 
 the immediate thing commanded is a stay of proceedings, 
 by which means the ulterior object of a security for costs 
 is obtained. So in ejectment, which is a fictitious pro- 
 ceeding, the courts allow the action to be brought in the 
 name of a nominal j)laintiff, and allow the landlord to 
 Cfjnie in and defend, but they take notice of the real par- 
 ties litigant. Those are the excepted cases, but the gene- 
 ral rule is, that courts of justice have no power except 
 over parties to the record." (d) 
 
 The assignor of a debt, who brings an action in his 
 own name, can nf)t be stayed in his i)roceedings on the 
 
 (c) Evans v. Kecs, 2 Q. li. 334. 341. ICxcciH in actions of Ejectment, 
 [hid. 
 
 ((/) Ilayward v GifTard, 4 M. & W. 196, 197, jiKli-niuiU of Lord Ahinger 
 
 r. u.
 
 86 PARTIES TO ACTIONS. 
 
 application of the defendant and the assig^nee, the right 
 course apjiarently being to make application tc? 
 [71] equity after judgment, to restrain the plaintiff from 
 issuing execution, {c) and the courts have no power 
 to compel a trustee to allow an action to be brought in his 
 name. 
 
 But though the courts of law deal with the plaintiff, 
 who is only nominally interested in the action as if it 
 were brought on his behalf, they will, nevertheless, indi- 
 rectly secure to a great extent justice to the three peisong 
 whose interests must be regarded, sc, the real plaintiff, 
 the nominal plaintiff, and the defendant. 
 
 1st. An action brought by a real plaintiff in the name 
 of a nominal plaintiff, will not be set aside merely on the 
 ground that the nominal plaintiff refuses his consent to 
 the action, [/) though it would seem that the assent o! 
 the nominal plaintiff should be obtained before com- 
 mencing the action, and that at least an application to him 
 should be made, together with an offer of a sufficient in 
 demnity against costs, {g) 
 
 2ndly. The courts will indirectly prevent the nominal 
 plaintiff from doing that which he, like every other plain- 
 tiff, has a right to do, {h) sc, giving a release from the 
 action to the defendant. 
 
 The courts used to achieve this object in the case of a 
 fraudulent release, by setting aside the plea of the defend- 
 ant in which such release was pleaded. The same object 
 IS now more simply attained by allowing an equitable 
 replication setting out the facts of the case. (?) 
 
 (e) Sepping v. Nokes, 2 C. B. 292, 294. 
 
 (/) Spicer v. Todd, i D. P. C. 306. Conf., Auster v. Holland, 3 D. & L. 
 740 ; Chambers v. Donaldson, 9 East, 471. Com]:)are Coleman v. Biedman, 7 
 C. B. 871 ; nom. Coleman v. Beadman, 18 L. J. 263, C. P. 
 
 ig) Spicer v. Todd, 1 D. P. C. 307. 
 
 (k) Legh V. Legh, i B. & P. 447 ; I2 L. J. 275, Ex. ; Phillips v. Claggelt. 
 II M. & W. 84 ; Manning v. Cox, 7 Moore, 617. 
 
 ^ {i} De Pothonier v. De Maitos, 27 L, J., 260, Q. B. ; E. B. & E. 46:. This 
 is, >o a certain extent, an exception to the principle that a replication must not 
 show a merely equitable right in the plaintiff'. 
 
 It seems doubtful whether a release, which is not fraudulent, can in any way 
 be got rid of (Crook v. Stephens, 5 B. N. C. 688). But a release by a merely 
 pominal plaintiff almost always must be fraudulent.
 
 GENERAL RULES. 87 
 
 Where a nominal plaintiff, being the officer of a 
 society, discharged the defendant from execution, [72] 
 he was attached for contempt of court, {k) 
 
 The courts will secure a nominal plaintiff against being 
 forced to pay the costs of an action in which he has no 
 interest, by staying the action until security for costs be 
 given him : (/) and tTie real plaintiff should, before com- 
 mencing an action, tender a sufficient indemnity for costs 
 to the nominal plaintiff. 
 
 The court may call on the nominal plaintiff to give 
 security for costs. (;;/) 
 
 " If a plaintiff in a cause be merely a nominal one, the 
 defendant may call upon him, not the party behind, to 
 give security for costs, and that will probably bring the 
 real party forward." («) 
 
 This can be done only where the nominal plaintiff is 
 m insolvent circumstances, {o) 
 
 This rule, though applying to rights of action of all 
 kinds, is for convenience considered separate!;, in its 
 relation to actions on contract and actions for forts re- 
 spectively. The exceptions to it will be found under the 
 rules as to actions on contract. 
 
 Rights of actions are also transferred or assigned in 
 consequence of marriage, bankruptcy, and death ; and the 
 exceptions to the general rule which thus arise are con- 
 sidered in the chapters appropriated to these subjects. 
 
 Rule 7. — No person can be sued who has \_7z\ 
 not infringed upon the right in respect of 
 which the action is brouj^ht.^ 
 
 o 
 
 (/•) McGregor v. Barrett, 6 C. B. 262. 
 
 (/) Auster v. Holland, 2 U. & L. 740. Spicer v. Todd, i I). I'. C. 306. 
 
 (m) Evans v. Rees, 2 Q. B. 334. 
 
 («) Spicer v. Todd, i D. P. C. 306. 
 
 io) Andrews v. Marris, 7 D. P. C. 712. See, as to actions hroiight without 
 authority, Barker v. Rowe, 3 D. P. C. 496 ; IIul)bart v. Phillips, .4 L. J. 103, 
 Ex.; Ho. liis V, Philips, l6 L. J. 339. Q. B. ; Ba)dey v. Buckland, i Ex. i; 
 16 L. J. 20J, Ex. ; Stanhope- v. Kcrmir., 3 D. P. (-'. 701 ; Burhcr v. Wilkins, 5 
 I). P. C. 305. 
 
 I. Rut where persons arc inter- and refuse to join with him, they 
 ested the same as plaintiff in a suit, may be made defendants, tht
 
 88 
 
 PA K Tins TO A C TIONS. 
 
 The object of the forei^oiiig rules lias been to determine 
 the person by whom an action may be brought; or, in 
 other woids, to answer in the most general terms the 
 
 reason being stated in the plead- 
 ing. Smith V. Sackett, 5 (^ilin. 
 545 ; Cummings v. Latliam,4 Mon. 
 104; Cook V. Hadiy, Cooke, 465. 
 This is true of joint administrators. 
 Rizer v. Gilipatrick, 16 Kan. 564; 
 and of members of voluntary asso- 
 ciations. Whitney v. Mayo, 15 111. 
 254. The parties may, however, be 
 allowed to change to the side of 
 their interest. Turnham v. Turn- 
 ham, 3 B. Mon. 582. 
 
 No person's interest can be af- 
 fected by any suit to which he is 
 not a party. Armstrong v. Arm- 
 strong, 19 N. J. Eq. 359; Powell v. 
 Finn, 5 Duer, 666; Hale v. Hol- 
 land, 92 111. 496 ; Ex parte Hol- 
 man, 28 Iowa, 88; Carney v. Em- 
 mons, g Wis. 114 ; Austin V Curtis, 
 41 Mich. 723; Atchison, &c., Ry. 
 Co v. Commissioners, 12 Kan. 139. 
 And a party before the court can- 
 not have a decree which determines 
 rights affecting also an absent party. 
 Reed v. Baker, 42 Mich. 272. 
 
 Parties interested in the subject 
 matter of a suit can be made par- 
 ties defendant any time, either on 
 their spplication or that of other 
 parties, in partition. Parkinson v. 
 Cahlinger, 65 Mo. 293 ; if they have 
 interests affected by the suit. Greg- 
 ory V. High, 29 Ind. 527 ; on credi- 
 tor's bills. Voorhees v. Reford. 14 
 N.J. Eq 158; but not in an ordi- 
 nary action at law by a creditor to 
 recover a debt. Askew v. Cars- 
 well, 63 Ga. 162. 
 
 In equity it is necessary that all 
 
 persons whose interests are to be 
 affected by the decree, or whose 
 concurrence is necessary to the 
 determination of the issue, should 
 be made defendants if they do not 
 join as plaintiffs. Tobin v. Wal- 
 kinshaw, i McAll. 29 So there 
 may be an end of litigation. Wil- 
 liams v. Bankhcad, 19 Wall. 571 ; 
 Williams v. Russell, 19 Pick. 165 ; 
 Stevenson v. Austin 3 Mete. 480; 
 Story V. Livingston, 13 Pet. 375; 
 Hicks V. Campbell, 19 N. J. Eq. 
 186; Hawkins V. Chapman, 36 Md. 
 99; Newcombe v. Horton, 18 Wis. 
 568 ; Kimball v. Connor, 3 Kan. 
 430; James v. Williams, 31 Ark. 
 177; Iglehart v. Moore, 21 Tex. 
 504. 
 
 No person can be made defend- 
 ant in a cause except by his own 
 consent or due process of law, nor 
 can he be affected by the judgment 
 of the court except he be a party. 
 Marshall v. Drayton, 2 Nott & M, 
 25. The fact that a party appears 
 in and defends an action alone is 
 not evidence that he is the party in 
 interest. Carlton v. Patterson, 29 
 N. H. 580. That no one can be 
 condemned in person or estate 
 without an opportunity of being 
 heard applies to a statutory pro- 
 ceeding where the statute is silent 
 on the subject of notice. State v. 
 Newark, 25 N. J. L. 399. No per- 
 sons are parties defendants to a 
 bill in chancery except such as are 
 described and named as such, and 
 against whom a subpoena is prayed.
 
 GENERAL RULES. 
 
 89 
 
 question who may be the plaintiff in an action. The object 
 of this and of the two following rules is to determine the 
 person against whom an action may be brought, or, in 
 other words, to answer in the most general terms the 
 question who may be made defendant in an action. 
 
 A reply to the first question involves the answer to 
 the second ; for when it is laid down that no one can sue 
 except for the infringement of a common law right, and 
 
 Verplanck v. Mercantile Ins. Co., 2 
 Paige, 438 ; Talmage v. Pell, 9 
 Paige, 410; Lucas v. Bank of 
 Darien, 2 Stew. 280 ; Archibald v. 
 Means, 5 Ired. Ev. 230; Green v. 
 McKenny, 6 J. J. Marsh. 193; 
 Carey v. Hillhouse, 5 Ga. 251. But 
 merely naming persons as defend- 
 ants and issuing process does not 
 make them so ; there must be ser- 
 vice of process either actual or con- 
 structive. Estill V. Clay, 2 A. K. 
 Marsh. 497. One who is neither 
 party nor privy to a proceeding in 
 equity is not bound by it. Lang v. 
 Waring, 17 Ala. 145. And publi- 
 cation against persons not made 
 defendants to the bill does not 
 make them parties to the suit. 
 Letcher v. Schroeder, 5 J. J. Marsh. 
 513; Taylor v. Bate, 4 T. B. Mon. 
 267. The rule that a state cannot 
 be sued in its own courts applies 
 only when it is a party to the 
 record, and not when it is inter- 
 ested in the subject matter of a suit 
 against its officers in their official 
 capacity. Michigan .State Bank v. 
 Hastings, i Doug. 225. The court 
 may require evidence that persons 
 beyond the jurisdiction named as 
 parties have actual knowledge of 
 the suit before a hearing on the 
 merits Lawrence v. Kokes, 53 Me. 
 no. In this case, Kent, J., says; 
 
 " This question is one that has 
 perplexed courts of equity as well 
 as courts of law. It is urged that 
 there are cases where, to dismiss a 
 bill or suit because a part of the de- 
 fendants are out of jurisdiction and 
 cannot be compelled to come in, is 
 a practical denial of justice, and 
 enables dishonest or reluctant de- 
 fendants to escape from any judg- 
 ment or recovery against them by 
 separating and having their domi- 
 cile in different states or in a foreign 
 country. * * * 
 
 " On consideration and compari- 
 son of authorities and of the reasons 
 on which they are based, we can 
 find no better rule, as a general 
 one, subject, of course, to excep- 
 tions in peculiar cases, than the 
 following : When it is certain, by 
 the fair construction of the bill 
 itself, or becomes so at the the hear- 
 ing or in any stage of the proceed- 
 ings, that the judgment or decree 
 must necessarily be directly against 
 the absent defendant, and that no 
 judgment or decree can be made 
 against the party before the court, 
 without embracing the absent and 
 binding them or property in which 
 they have an interest, the hearing 
 cannot ordinarily proceed without 
 them."
 
 90 PARTJES TO ACTIONS. 
 
 that every person can sue who has sufl'ered an infringe- 
 nient of a common law right, it lt)llows that no one can 
 be sued who has not inliinged upon a common law right 
 of another's, and that any person can be sued who has 
 infringed upon such a right. Still, though the general 
 rules as to plaintifl's involve in themselves to a great ex- 
 tent the general rules as to defendants, confusion is 
 avoided by considering the latter rules separately. 
 
 X. is not liable to be sued by A. unless he has in- 
 fringed upon some right of A.'s. As A.'s rights either 
 depend upon a contract between him and X., or exist in- 
 dependently of any contract between him and X., X., if 
 he has violated A.'s rights, must have broken a contract, 
 or have infringed upon a right independent of contract, 
 that is, have committed a wrong. 
 
 The general rule in its application to actions for 
 breach of contract hardly admits of any explanation 
 clearer than the statement of it. It amounts, in fact, 
 [74] to this : that X. can not be sued by A. for the breach 
 of any contract to which X. is a stranger ; {q) or,. 
 in other words, that X. can not be sued for breaking a 
 contract which X. has not made. Confusion, neverthe- 
 less, has occasionally arisen from a neglect of this prin- 
 ciple. 
 
 X., for example, professes to be acting as an agent for 
 Y., and to have power to contract on Y.'s behalf with A. 
 As a matter of fact, X. has no authority to enter into an 
 agreement with A. on behalf of Y., and A., therefore, 
 after having been induced by X. to contract, finds it im- 
 possible to enforce the contract against Y. {r) 
 
 It was at one time thought {s) that A., under these 
 circumstances, could sue X. for the breach of the contract 
 which X. alleged he had authority to make between A. 
 
 iq) There is an apparent exception to this principle in those cases in wliicli 
 an agent can be sued for a contract made by his principal ; but they really il- 
 lustrate the rule, for in each of these cases, it will Ise found that the agent is 
 liable, because he makes himself a party to the contract. See Chapter XII. 
 
 (r) Chapter XII. 
 
 (j) See Chandelor v. Lopus, I Smith, L. C, 6th ed.. 170 ; Thompson v 
 Davenport, 2 Smith. L. C, 6lh ed., 327.
 
 GENERAL RULES. 91 
 
 and Y. It is now settled that on that contract A. can not 
 sue X. " I always thought," it has been said by Lord 
 Campbell, C. J., " that the notion of suing an agent in 
 such a case as principal was absurd. For instance, in the 
 case of a man promising that another shall marry a 
 woman, and it turning out that he had not authority to 
 make the promise — could he be sued for breach of prom- 
 ise of marriage ? But it is clear that an agent gives a 
 warranty that he is agent when he signs as agent, and he 
 is liable to make a recompense to the party to whom he 
 represents himself as agent for the damage which he has 
 caused by the breach of the warranty." {t) He may 
 sue X., if there has been fraud, for fraudulently rep- [75] 
 resenting that he had authority to contract for Y., 
 for this is a distinct wrong done to him by X. independ- 
 ently of the contract. He may also sue X. for an implied 
 warranty, /. ^., on a contract arising from the whole cir- 
 cumstances of the transaction between him and X., that 
 X. had authority from Y. to contract for him. {ic) 
 
 There is more difficulty in the application of the rule 
 to actions for torts, since X. may, by his conduct, occa- 
 sion damage to A., and yet it may be hard to decide 
 whether X. has or has not infringed upon A.'s rights. 
 This difficulty is specially apt to arise in cases in which it 
 is essential for A., in order to maintain his action against 
 X., to show that actual damage has resulted to him from 
 the acts of X. X.'s liability depends upon his being " the 
 cause" of the wrong, but he is not in law considered the 
 cause unless the damage can be naturally and clearly con- 
 nected with his acts or omissions; {x) and it may be diffi- 
 cult to show that the damage to A. is the natural result 
 of X.'s conduct, and, again, though X.'s negligence mav 
 
 (0 Collen V. Wright, 26 L. J. 150, Q. B., jier Campbelt,, C. J. Compare 
 as to liability of auctioneers, Warlow v. Harrison, 28 L. J. 18, Q. B. ; 29 L. J. 
 14, Q. B. (Ex. Ch.); Benjamin, Sale, 353-357. 
 
 (u) Se Collen v. Wiii^ht, 7 E. & B. 301 ; 26 L. J. 147, Q. B. ; 27 L. J. 215. 
 Q. B. : Uanrlall v. Trimmen, 18 C. B. 786; 25 L. J. 307, C. P.; Simons v 
 Patchelt, 7 E. & B. 568 ; 26 L. J. 195, Q. B. See further on this point. Chap 
 terXH. 
 
 (x) See Chapter XXV.
 
 92 PA R 77 KS TO ACT70NS. 
 
 indiibitabl}' occasion damage to A., still, if A.'s own negli- 
 g-ence contribute to the result, X.'s negligence is not 
 considered the cause of the damage, and he is not liable 
 on account of what is termed the contributory negligence 
 ofA.O') 
 
 [76] Rule 8. — Every person can be sued who 
 
 infringes upon the right of another. 
 
 This rule is in its application to breaches of contract 
 perfectly simple. Any person who makes a contract 
 infringes upon the right of another by even the slightest 
 omission to perform that which he has contracted for. 
 If, therefore, X. conti-acts with A., X. can be sued by A. 
 for every breach of the contract, and all that need be 
 established in order to make X. liable is that he has 
 made the contract with A., and that he has broken it. {z) 
 
 Similarly, if X. causes an " injury " to A., or, in other 
 words, invades any right of A.'s which exists indepen- 
 dently of contract, X. is liable to an action by A. If the 
 act complained of is one actionable in itself, e. g., an 
 assault, the publication of a libel, &c., all that is necessary 
 in order to make X. liable is to show that the act com- 
 plained of was the act of X. 
 
 If, on the other hand, X.'s act is one the wrongfulness 
 of which depends upon the actual damage caused by it to 
 A., {a) e. g., where X. uses defamatory language about A., 
 actionable only by reason of the resulting damage, then 
 it is necessary to show, in order to make X. liable, first, 
 the utterance of the slander by him, and secondly, the 
 damage resulting to A. 
 
 Rule 9. — The liability to be sued can not be 
 transferred or assigned. 
 
 {y) Ibid. 
 
 (2) Chapter XXV. 
 
 {a) See ante.
 
 GENERAL RULES. 93 
 
 If X. be under a ccntract with A., or if X. has com- 
 mitted a tort against A., he can not transfer or 
 assign to Y. his liability to be sued for breach of the {yy'] 
 contract, or for the tort by A. 
 
 The exceptions to this rule are : the assignment of 
 liabilities on covenants which " run with the land," the 
 assignment of liability for a debt bj' agreement among 
 all the parties interested, and the assignment of liabilities 
 in consequence of marriage, bankrupty, or death, {c) 
 
 (c) See Chapter XI.
 
 94 
 
 PARTIES TO ACTIONS. 
 
 CHAPTER IV. 
 
 ACTIONS ON CONTRACT. 
 PLAINTIFFS. — GENERAL RULES. 
 
 Rule id. — No one can sue for the breach of a 
 contract who is not a party to the contract, {ay 
 
 This rule is often expressed in the maxim that no one 
 can sue on a contract " who is a stranger to the contract," 
 
 {a) This rule applies in strictness onlv to the original parties to the contract. 
 To make it complete should be added the words, " or who does not derive 
 rights from an original party to the contract." This addition is needed in 
 order to include the case of executors and others who sue as representing origi- 
 nal parties to a contract. The same remark applies to Rules ii and 12. 
 
 I. Sisson V. Cleveland, 14 Mich. 
 496; Kennison v. Ham, 20 N. H. 
 507 ; Corbett v. Schumacker, 83 111. 
 405 ; Cobb V. I. C. Ry. Co , 38 
 Iowa, 616 ; Jamison v, Jarrett, 4 Ind. 
 188; Keane v. Fisher, 9 La. Ann. 
 74: Albany Exch. Bank v. Sage. 6 
 Hill, 563 ; Sumner v. Sleeth, 87 
 111. 502 ; Ryer v. Stockwell, 14 Cal. 
 135 ; State v. Rhoades, 7 Nev. 440. 
 But it is a no less general rule that 
 actions upon any contract, whether 
 express or implied, parol, under 
 seal, or of record, must be brought 
 in the name of the parties legally 
 interested. Kountz v. Holthonse, 
 85 Pa. St. 237 ; Anderson v. Wil- 
 liams, 2 Cash. 686 ; Kenniston v. 
 Ham, 29 N. H. 507 ; Larned v. Car- 
 penter, 65 111. 544; Commonwealth 
 
 V. Hughes, 8 B. Mon. 400; Shot- 
 well V. Gilkey, 31 Ala. 727 ; Hath- 
 cock V. Owen, 44 Miss 802 ; Keane 
 V. Fisher, 9 La. Ann. 74 ; Phillips 
 V. Pennywit, i Ark. 61. 
 
 The legal interest in a contract 
 is in the person from whom the 
 consideration flows and to whom 
 the contract was made, and he con- 
 sequently must sue. Exchange 
 Bank v. Rice, 107 Mass. 41 ; Hall 
 V. Huntoon, 17 Vt. 244; Fugure v. 
 Mutual Society, 46 Vt. 369; Gard- 
 ner V. Armstrong, 31 Mo. 538 ; 
 Treat v. Stanton, 14 Conn. 451. 
 
 The plaintiff must have a real 
 interest subsisting at the com- 
 mencement of the action. Leber- 
 man v. New Orleans, &c., Co., 28 
 La. Ann. 412; Winter v. City of
 
 ACTIONS ON CONTRACT. 95 
 
 or " who is not privy to it." In whatever words expressed 
 it embodies the principle that "rights founded on con- 
 tract belong to the person who has stipulated for them,"((^) 
 and to no other, and, therefore, that no one can sue for 
 the non-performance of an agreement to which he was not 
 either directly or through his agent a party, {c) 
 
 The reason why A. can sue X. for a breach of con- 
 tract is, that A. has, in virtue of X.'s promise to him, 
 acquired certain rights against X., which X. infringes upon 
 by breaking his agreement. But as these rights depend 
 upon the promise made by X. to A., they can not be the 
 rights of any third party, M., to whom A. has not made 
 a promise, i. e., who is not a party to the contract. The 
 breach, therefore, of the contract, even though it 
 may damage M., does, not interfere with M.'s rights, [79] 
 and therefore gives M. no right of action, (e) 
 
 To look at the same thing from another point of view : 
 X., the contractor, incurs a" duty " towards A., the other 
 party to the agreement, to perform his contract, but he 
 comes under no obligation in respect of the agreement 
 towards any third person, M. If, therefore, X. breaks 
 his promise, he is liable to an action by A., but is not 
 liable to be sued by M. It is, in short, "clear tha^; an 
 action of contract can not be maintained by a person 
 
 (l>) Alton V. Midland Rail. Co.. 19 C. B., N. S., 240. 
 (f) Ibid, 
 (if) Rule 2. 
 
 New Orleans, 26 La. Ann. 310. A Nelson v. Johnson, 18 Ind. 332. 
 
 contingent and uncertain interest is He can, at law, only maintain an 
 
 not sufficient. Keene's Appeal. 60 action against his immediate as- 
 
 Pa. St. 510. When the plaintiff is signer; but in equity he can reach 
 
 not a party to the instrument sued a remote assignor. Weaver v. 
 
 on, his interest should be affirma- Beard, 21 Mo. 156; Tucker v. 
 
 tively shown in the pleading. Hick- Shiner, 24 Iowa, 334; Harris v. 
 
 lin V. Nebraska City Nat. Bank, 8 Johnston, 3 Cranch, 311 ; Johnson 
 
 Neb. 465. V. Henderson, 76 N. C. 228; Hclfer 
 
 Thc assignee of a non-negotiable v. y\lden, 3 Minn. 332; but see 
 
 note or bond must style himself Hamilton v. McDonald, 18 Cal. 
 
 assignee in the writ. Thomp- 129. 
 son V. Malone, 13 Rich. 293;
 
 96 PARTIES TO ACTIONS. 
 
 who is not a party to the contract; and the same prin- 
 ciple extends to an action of tort arising out of a 
 contract." (/) 
 
 No one, therefore, can bring an action for a breach oi 
 contract merely because he thereby suffers loss or damage, 
 smce a person ma}' be damaged by the L~each of a con- 
 tract to which he is not a party, and under which, there- 
 fore, he has no rights. The loss he suffers, in so far, ol 
 course, as it arises merely from the breach of the con- 
 tract, is damnum absque injuria, and affords no cause of 
 action, {g) 
 
 X., for example, contracts with A. to pay M. iJ"2o. If 
 the money is not paid, M., though interested in the per- 
 formance of the agreement, can not sue X. ; [h) the action 
 must be brought by A. 
 
 X. enters into a contract with A., and his non-per- 
 formance of it indirectly injures M. ; M. can not, and A. 
 can, sue X. (/') 
 
 Contracts are divided into " simple " (or " parol ") 
 contracts, i. e., agreements (whether by word of mouth 
 or in writing) which are not under seal, and specialties 
 /. e., contracts either under seal (or by deed), or of 
 '80] record. If contracts of record, to which it is not 
 necessary to do more than refer, be omitted, agree- 
 .nents may be divided into contracts not under seal, 
 t. r., simple contracts, and contracts under seal, i. e., 
 deeds, {k) 
 
 As no one can sue on a contract who is not a party to 
 it, and it is obvious that the person with whom a contract is 
 made can sue upon it, the point to be ascertained in de- 
 cerminmg who ought to be the plaintiff in an action fo'" 
 
 (/) Tollit V. Shenstone. 5 M. & W. 289; 8 L. J. 244, Ex., judgment of 
 Mai.ii.E, Ji. Winterbottom v. Wright, 10 M. & W. 116 ; 11 L. J. 415, Ex. 
 
 ( 0-) See ante. 
 
 I k) Crowe V. Rogers, i Str. 592 ; Price v. Eastoii, 4 B. & Ad. 433. 
 
 ii) Winterbottom V. Wright, lO M. & W. 116 ; 11 L. J. 415, Ex. ; Alton v. 
 Midland Kail Co., 19 C. R., N. S., 219 ; 34 L. J. 292, C. P. 
 
 {k) Rann v. Hughes, 7 T. R. 251. " All contracts are, by the laws of Eng- 
 'and, di.->tingiiished into agreements by specialty and agreements by paro*..'' 
 Ccnf. Von .Mierop v. Hopkins. 3 Fuirr. i6fn.
 
 ACTIONS ON CONTRACT. 97 
 
 breach of contract is, who is the person with whom the 
 contract is, in point of law, considered to be made. 
 
 Rule 1 1 determines who is the person who must sue 
 for the breach of a simple contract, /. e., who is the person 
 with whom such a contract must be considered to be 
 made. 
 
 Rule 12 determines who is the person who must sue 
 for the breach of a contract by deed, i. e., who is the 
 person with whom such a contract must be considered to 
 be made. 
 
 Torts founded o?i contract. — Attempts have often been 
 made to evade the rule that no one can sue on a contract 
 who is not a party to it, by bringing what is in reality an 
 action for breach of contract in the form of an action for 
 tort. These attempts have always failed whenever the 
 action was considered by the Court to be in substance 
 grounded on contract. (/) 
 
 Rule ii. — The person to sue for the [81] 
 oreach of a simple contract must be the person 
 from whom the consideration for the promise 
 moves, (ill) 
 
 A mere promise by one person to another does not 
 (unless made by deed) constitute a contract. If X., either 
 by word of mouth or in writing, e. g., by letter, promise 
 A. to pay him ;^ioo, this does not constitute a contract 
 between A. and X. ; and if X. does not keep his promise 
 A. has no remedy against him. 
 
 To constitute a va'id simple (or parol) contract, i. e., 
 an agreement not under seal, three things are necessary : 
 " a promisor," or " person who promises," " a promisee," 
 or "person to whom a promise is made," and lastly, 
 "a consideration," or "inducement to the promisor to 
 
 (/) See further, as to such actions, Chapter XIX. The exceptions to Rule 
 10 are also exceptions to Rule ii, and arc considered in that light. See 
 tost. 
 
 (m) Smart v. Chcll, 7 Dowl. 785. 
 7
 
 98 PARTIES TO ACTIONS. 
 
 make the promise." Thus, if X. buys goods from A., and 
 promises to pay him ;^20 for them, there are all the 
 requisites for a binding contract. X. is the " promisor," 
 A. is the " promisee," the supply of the goods by A. to 
 X. is the " consideration or inducement for X's promise." 
 The promise need not be made in so many words, but 
 may be what is called implied ; («) and is binding, though 
 not made to a definite person, if it be made to him as the 
 member of a class. X., for example, offers a reward to 
 
 any person who will find a watch which he has lost. 
 |82^ The promise is as much a promise made to A., the 
 
 finder, as if it had been a promise made directly 
 by X. to A. to pay him a reward if he found X's watch, (o) 
 The consideration or inducement may be described as 
 " some matter agreed upon as a return or equivalent for 
 the promise made, showing that the promise is. not made 
 gratuitously." (/) " A consideration is any act of the 
 plaintiff [the promisee] from which the defendant [the 
 promisor] derives or expects to derive any advantage, or 
 any labor, detriment, or inconvenience sustained by the 
 plaintiff, however small the benefit or inconvenience may 
 be, if such act is performed or such inconvenience suffered 
 by the plaintiff at the request or with the consent, either 
 express or implied, of the defendant." {q) The consider- 
 ation may therefore be defined in very general terms as 
 any inducement offered by one party to another to induce 
 the other to contract with him. (r) 
 
 (w) A promise is called implied in at least three cases, — I. Where there is a 
 contract between two parties, the terms of which are distinctly understood but 
 not expressed in so many words ; 2, where there is a contract between t vo 
 parties, some of the terms of which are not fixed by themselves, but are affixed 
 oy the law to the relation in which they stand ; as where X. undertakes to 
 carry the goods of A., and thereby incurs the liabilities of a c.irrier ; 3, where 
 no contract exists, but one party is considered by the law to have the same 
 rights against another which he would have were there a contract between 
 them ; as where A. is compelled to pay money which X. is legally bound to 
 pay, and the law implies a promise on X.'s part to repay it. 
 
 [o) Williams v. Carvvardine, 4 B. & Ad. 621. 
 
 (/) Leake, Contracts, 10. 
 
 ( q) I Selwyn, N. P., 13th ed., 55. 
 
 (r) Looked at from the side of the promisee, the consideration might be 
 more accurately described as any act, &c., which one person is induced by 
 another 10 perform in return for that other's promise. It must be remembered
 
 ACTIONS ON CONTRACT. 99 
 
 To make the contract valid, not only must there be a 
 consideration or inducement, but the consideration must 
 proceed from the promisee, or, more strictly, the la^^ 
 considers the promise to be made to the person from 
 whom the inducement to make it comes ; or, in other 
 words, " from whom the consideration moves." 
 
 As the person to sue for the breach of an agreement 
 must be the person with whom the agreement is made, 
 or, in other words, to whom the defendant has made a 
 promise, it follows that the person to sue for the breach 
 of a simple contract must be the person " from whom the 
 consideration moves," since, as already explained, 
 he is the person to whom the law considers the [83] 
 promise to have been made. He need not, how- 
 ever, necessarily be the person to receive benefit from the 
 performance, or to suffer from the breach of the agree- 
 ment. 
 
 A., for example, stipulates with X. that, in considera- 
 tion of a payment made, or other service rendered by A. 
 to X., X. shall build a house for M. X. breaks his con- 
 tract. The person to sue X. is not M., who suffers by the 
 house not being built, but A., since the consideration 
 moved not from M., but from A. 
 
 Any difficulty in understanding this rule arises either 
 from forgetfulness of the fact that a mere promise by 
 word of mouth or in writing (if not under seal) does not 
 constitute a contract, or from the failure to observe that, 
 though ordinarily the person from whom the considera- 
 tion moves is also the person who will derive benefit from 
 the performance of the contract, yet it may equally well 
 happen that the consideration moves from one person, and 
 that another person be benefitted by the performance, 01 
 lose by the breach of the contract. That this is so is 
 nK)st easily seen from examples. 
 
 A., the plaintiff, had a claim against M. for a debt of 
 /"70. X., the defendant, undeitook, in consideration of 
 
 lliat III III iny (,i ■,(•-, ilic coiitmct flocs not hfgin l)y an offer on the part of the 
 ;)romisec, Imt by a promise on the part of the promisor of some advanlage, e.g., 
 p.iyment, 'f the j)romisec pcrfnrin sonif act.
 
 .oo PARTIES TO ACTIONS. 
 
 M. making a title for X., to pay A. the £yo. A. was held 
 to have no right of action against X., since the considera- 
 tion moved from M., and not from A. {s) 
 
 In consideration that M. would work for X. (the de- 
 fendant), X. undertook to pay a certain sum to A. (the 
 plaintiff). The declaration in this case did not " show 
 any consideration moving from the plaintiff to the de- 
 fendant." (/) Hence, the plaintiff was held to have no 
 cause of action. As there was no privity shown between 
 the plaintiff and the defendant, the case was held precisely 
 like Crowe v. Rogers, and was governed by it. {71) 
 [84] After a marriage between A. (the plaintiff) and M.'s 
 daughter, N., the father of A,, and M. agreed, with 
 a view to provide a marriage portion, to pay two sums of 
 money to A. ; and, further, that A. should have power to 
 sue for the same in any court of law or of equity. It was 
 held, nevertheless, that A. could not bring an action 
 asrainst X., the executor of M., for that no consideration 
 moved from A. {x) 
 
 Had the agreement been made before the marriage (A. 
 being a party thereto), there would have been a good 
 consideration moving from A., i. e., the subsequent mar- 
 riage with the daughter of M. {y) 
 
 This case disposes of early decisions from which it 
 might appear that a person not a party to the contract 
 could sue on the ground of his interest in the contract, 
 combined with his near relationship to a party to the con- 
 tract. 
 
 " Some of the old decisions appear to support the pro- 
 position that a stranger to the consideration of a contract 
 may maintain an action upon it if he stands in such near 
 relationship to the party from whom the consideration 
 proceeds that he may be considered a party to the con- 
 sideration. The strongest of those cases is that cited in 
 
 (j) Crowe V. Rogers, i Str. 592. 
 
 (/) Price V. Easton, 4 H. & Ad. 434, judgment of Denman, C. J. 
 (m) Ibid., judgnrent of LiTTLEDALE, J. 
 
 {x) Twcddle v. Atkinson, I B. & S. 393 ; 30 L. J. 265, Q. B. 
 {y) Shadwell v. Shadwell, 9 C. B., N. S., 159; 30 L. J. 145. C. P. (£> 
 Ch.V
 
 ACTIONS ON CONTRACT. loi 
 
 Bourne v. Mason, {s) in which it was held that the daugh- 
 ter of a physician might maintain assumpsit upon a 
 promise to her father to give her a sum of money if he 
 performed a certain cure. But there is no modern case 
 in which the proposition has been supported. On the 
 contrary-, it is now established that no stranger to the 
 consideration can take advantage of a contract, although 
 made for his benefit, {a) At the time when the cases 
 . . . . cited were decided, the action of assumpsit 
 was treated as an action of trespass upon the case, 
 and, therefore, in the nature of a tort ; {b) and the [85] 
 law was not settled as it now is, that natural love 
 and affection is not a sufficient consideration for a prom- 
 ise upon which an action may be maintained, nor was it 
 settled that the promisee can not bring an action unless the 
 consideration moved from him. The modern cases have 
 in effect overruled the old decisions. They show that the 
 consideration must move from the party entitled to sue 
 upon the contract." {c) 
 
 A. became the purchaser and bearer of shares in a 
 company of which X. (the defendant) was managing di- 
 rector. A. was induced to become such purchaser and 
 bearer, through confidence in the promise by X. of certain 
 advantages to all bearers of shares in the company, and 
 sued X. for the non-performance of this promise. It was 
 held, that A. could not sue X. for breach of contract, for 
 that there was no consideration for the promise, {d) 
 
 " There seems to us," it is said in the judgment in this 
 case, "as between these parties to be an entire want of 
 consideration for the promise. It is not stated, nor does 
 It appear, that from the plaintiff's buying and becoming 
 bearer <jf these shares, any benefit accrued to the defend- 
 ant, or that at the time when the contract is supposed to 
 
 («) I Vcntr. 6. 
 
 (a) Twffiflle V. Atkinson, i U. & S. 397 ; 30 L. J. 267, Q. 15., judgment ot 
 WiGIITMAN. J. 
 (/') See 3»/f. 
 (c) Tweddle v. Atkinson, I 15. & S. 39S ; 30 L. J. 267, Q. 15., judgment of 
 
 CROMJ'TON. J. 
 
 («/) Gerhard v. Hates 2 K. I't 15. 476 ; 22 L. J. 364, Q. B.
 
 ro2 PARJIES TO ACTIONS. 
 
 have been entered into, any {)rcjudice accrued to the 
 plaintiff. A prejudice to the promisee incurred at the 
 request of the promisor, may be a consideration as well 
 IS a benefit to the promisor proceeding from the promi- 
 see. But this must be a prejudice on entering into the 
 contract, not a prejudice from the breach of it," {e) 
 
 This case should, however, be distinguished from the 
 cases in which it has been held that an action may 
 1^6] be maintained for a reward offered in a public ad- 
 vertisement. They are somewhat peculiar, " bu» 
 in these cases there is a distinct promise to any one who 
 shall make the discovery, and there is a good considera- 
 tion for the promise in the benefit to accrue to the 
 promisor, as in showing that he is heir-at-law to a person 
 who died seized of real property and intestate, or preju- 
 dice to the promisee, as that he shall entitle himself to the 
 reward by voluntarily coming forward as a witness." {/) 
 
 It has been held that the receiver of a telegraphic 
 message could not maintain an action against the com- 
 pany for a mistake in transmitting the message, whereby 
 he has been damnified, [g) This decision rested on the 
 ground that the obligation of the company to use due 
 care and skill in the transmission of the message was one 
 entirely arising out of the contract, and that the contract 
 was made with the sender of the message. This case 
 exactly illustrates the general rule. The person damaged, 
 i. e., the receiver of the message, was not the person with 
 whom the contract was made. The sender, with whom 
 the contract was made, was not damaged. The latter 
 nevertheless, was the person by whom the action ought 
 to have been brought, {h) 
 
 A., the consignor or sender, delivers goods to X., a 
 
 {e) Ibid., 487, 488 ; per Curiam. 
 
 (/) Gerhard v. Bates, 2 E. & B. 488 ; judgment of Campbell C. J. See 
 Williams v. Carwardine, 4 B. & Ad. 621 ; Tarner v. Walker, L. R. 2, Q. B. 
 301 ; 36 L. J. 112, Q. B. (Ex. Ch.) ; L. R. i, Q. B. 641 ; 35 L. J. 179, Q. B. 
 
 (g) Playford v. United Kingdom Telegraph Co., L. R. 4, Q. B. 706. This 
 case was decided before the telegraphs were transferred to the Post-office. 
 As to difficulty in bringing actions against the Post-office, see Chapter XXVI. 
 
 [h) See for further illustrations of rule, Pigott v. Thompson, 3 B. & P. 147 ; 
 M'Contray V. Thomson, Irish Rep., i Com. Law, 226.
 
 ACTIONS ON CONTRACT. 103 
 
 carrier, to be carried to B., the consignee, or person to 
 whom the goods are sent. The goods are not delivered. 
 Is A., the consignor, or B., the consignee, the person to 
 sueX.? 
 
 The general answer is that the contract for carriage is 
 sometimes to be considered an agreement between 
 the consignor A. and the carrier X., and sometimes [87] 
 to be considered an agreement between the con- 
 signee B. and the carrier X., but that most usually it will 
 be found to be an agreement between the consignee and 
 the carrier, and that therefore B., and not A., is usually 
 the right person to sue. 
 
 In determining whether the consignor or the con- 
 signee of the goods is the proper plaintiff, the following 
 principles must be borne in mind : 
 
 istly. The contract for carriage is, in. the absence ot 
 any express agreement, presumed to be between the 
 carrier and the person at whose risk the goods are carried, 
 i. e., the person whose goods they are and who would 
 suffer if the goods were lost. 
 
 This person is ordinarily the consignee, for when, as is 
 often the case, he is the purchaser of the goods, delivery 
 of the goods by the vendor to the carrier operates as 
 delivery to the purchaser or the consignee, [i] It is 
 for him the goods are carried, and the consignor, in em- 
 ploying the carrier, is considered as agent of the con- 
 signee for that purpose ; since it appears " to be a propo- 
 sition as well settled as any in law, that if a tradesman 
 order goods to be sent by a carrier, though he does not 
 name any particular carrier, the moment the goods are 
 delivered to the carrier, it operates as a delivery to the 
 purchaser; the whole property immediately vests in him; 
 he alone can bring an action for any injury done to the 
 goods, and if any accident happens to the goods, it is at 
 his risk." {k) 
 
 (1) I Stiwyn, N. P., 13th ed., 359. 
 
 (k) Dutton V. Solomonson. 3 13. & P. 584, judgment of Ai.Vani.kv, C. J. j 
 Dawes V. Peck, 8 T. R. 330 ; 3 Esp. 12. See Wait v. Hakcr, 2, Kx. i ; 17 L. 
 J ",07, Kx.
 
 104 PARTIES TO ACTIONS. 
 
 WluMi, thcrcrtirc, o;oods arc sent to a person who has 
 jHiichascd fhcni ; or arc shipped under a bill of lading 
 by a person's order, and on his account, (/) the consignee, 
 as being the person at whose risk the goods are, is 
 [88] considered the person with whom the contract is 
 made. He is liable to pay for the carriage, (;«) and 
 is the proper person to sue the carrier for a breach of 
 contract. 
 
 2ndly. Since the reason of the consignee being the 
 person to sue is, that the goods are his and at his risk, and 
 therefore the agreement for carriage is (in the absence of 
 Any special C(3ntract) held to be made with him, it follows 
 that if the goods are not at the risk of the consignee the 
 consignor is the proper person to sue. 
 
 Where, that is to say, from any cause the property in 
 the goods has not passed to the consignee, and they 
 remain at the risk of the consignor (as where goods are 
 forwarded for sale on approval, {n) or where the contract 
 of sale is within the Statute of Frauds, and there is no 
 evidence of a contract or of a delivery and acceptance 
 sufficient to satisfy the statute, {o)) then the contract is 
 considered to be with the consignor, and he, therefore, is 
 the person to sue for its breach. 
 
 "If goods," it has been said, "are delivered to a 
 carrier to be forwarded to their place of destination, 
 that may or may not be a contract with the consignee. 
 In the case of vendor or vendee, the consignor does not 
 
 (/) Brown v. Hodgson, 2 Camp. 36. 
 
 (;«) Dommett v. Beckford, 5 B. & Ad. 522 ; I Selw3'n, N. P., 13th ed., 361. 
 It is said that the mode in which the carrier was to be paid, sc, by the con- 
 signor, makes no difference ; for this, King v. Meredith, 2 Camp. 639, is cited. 
 This, however, is not the case of an action against the carrier. It does not (it 
 is submitted) prove more than that the goods might be at the consignee's risk, 
 even though the consignor were 10 pay for the carriage. It does not establish 
 that the consignor might not, on account of the payment, have had a right of 
 action against the carrier for non-delivery, i.e., that the payment might not be 
 considered proof of a special contract between ihe consignor and the carrier. 
 Compare Davis v. James, 5 Burr. 2680. 
 
 («) Swain v. Shepherd, i AI. & Rob. 223 ; Sargent v. Morris, 3 B. & Aid. 
 277- 
 
 {0) Coates V. Chaplin, 3 Q. B. 483. Compare Freeman v. Birch, 3 Q. B, 
 ic"? Fragaro v. Long, 4 B. & C. 219. Cliitty, Contracts, 7th ed., 450.
 
 ACTIONS ON CONTRACT. 105 
 
 act as the agent of the consignee, but on his own behalf, 
 and up to the moment of the delivery of the goods to the 
 carrier the property is in him. Upon the de- 
 livery the goods become the property of the ven- [89] 
 dee. . . . Therefore if the goods are damaged or 
 lost before the carrier pays the consignor," [_sc., the value 
 of the goods] " he should ascertain whether the property 
 is in him ; " \i. e., the consignor] " otherwise he would 
 pay in his own wrong, if it should turn out that the prop- 
 erty was in the vendee, for in that case the contract is with 
 him alone. ... I take this ground, that unless it can 
 be shown that " [the consignor] " was the owner of the 
 goods, the contract was with " [the consignee] "alone; 
 therefore he alone is entitled to sue." (/) 
 
 3rdly. Though, if there be no express agreement, the 
 person at whose risk the goods are (generally, though 
 not always, the consignee) is the proper person to sue 
 the carrier for non-delivery, yet, if there be an express 
 agreement between the consignor and the carrier, e. g., 
 if the consignor expressly make himself liable to pay for 
 the carriage, then the consignor may maintain an action 
 against the carrier for non-delivery. And the case is 
 substantially the same where the carrier has so dealt with 
 the consignor as to be estopped from denying that the 
 goods delivered to him are the consignor's goods, (r) 
 
 The law, therefore, on this subject may thus be 
 summed up : 
 
 Where there is no express agreement, the person at 
 wliose risk goods arc carried is entitled to sue the carrier 
 for their non-delivery. This person is generally the con- 
 signee, but may be the consignor. 
 
 The action may be brought in the name of the con- 
 signor if there is an express agreement between him and 
 the carrier as to the employment of the carrier on his 
 account, (t) 
 
 {/>) Per Watso.V, H., Coombs v. Bristol and Exeter Rail. Co.. 3 H. * N. 6, 
 
 (r) Compaie Lush, I'raciice, 3rd ed., 10, 11. 
 
 (/) Davis V. Jones, 5 liurr. 2680 ; Moore v. Wilson, I T, R. 659 ; Sargent 
 r. Morris, 3 H. & Aid. 277 ; Duniop v. Lambert, 6 CL & Fin. 600 ; liuUen, 
 Pleadings, 3rd ed., 122.
 
 106 PARTIES TO ACTIONS. 
 
 [90] Actions by consignor or consignee furnish no 
 
 ex'ccption to the general rule; for where no express 
 agreement exists the contract for carriage is a contract 
 between the carrier and the person at whose risk the goods 
 are carried, who, therefore, must sue for any breach of 
 contract. When, again, there exists an express agreement 
 with the consignor, he, as being the person with whom 
 the contract is made, must be the plaintiff in an action 
 against the carrier, (?/) 
 
 The owner of the goods may sometimes, independently 
 of any contract with the carrier, have a right to bring an 
 action of tort against the latter for injury or damage done 
 to his goods, {x) Hence (it is gonceived) cases may arise 
 in which the consignor may sue for the breach of an 
 express contract, and the consignee, as owner, may also 
 have a right to sue for damage to his property, (j/) 
 
 Exception i — Actions by a person appointed by statute to 
 sue on behalf of others. 
 
 Banking companies within 7 Geo. 4, c. 46, s. 4, as well 
 as other bodies, are empowered, and therefore compelled 
 by statute, to sue in the name of one of their officers, e, g., 
 secretary, manager, clerk, &c. Such a nominal plaintiff 
 brings actions on contracts to which he is not (unless he 
 happens to be a shareholder in the company) in any sense 
 a party, {z) 
 
 Exception 2. — Actions which can be brought either by a 
 principal or an agent. 
 
 In certain cases [a) either the principal, with whom 
 the contract is really made, or the agent through whom 
 
 {tt) Where the consignor acts as agent of the consignee, but contracts in his 
 own name, it would appear that either the consignor or the consignee may sue. 
 Rule 17, Exceptions 4 and 5. 
 
 (jt) Marshall v. York and Newcastle Rail. Co., 11 C. B. 665 ; 21 L. J. 34, C 
 P.; Martin v. Great Indian Rail. Co., L. R. 3, Ex. 9; 37 L. J. 27, Ex. 
 
 {y) Ibid. As to actions for torts founded on contract, see Chap. XIX. 
 
 (z) Rule 20, Exception t. 
 
 ia) Rule 17, Exceptions 4-7.
 
 ACTIONS ON CONTRACT. lo; 
 
 a contract is made, can sue for its breach ; i. e., a [91] 
 person can sue from whom the consideration does 
 not move. 
 
 Exception 3. — Some actions for money had and received. 
 
 The action for money received lies wherever the de- 
 fendant has received money which in justice and equity 
 belongs to the plaintiff, under circumstances which render 
 the receipt of it a receipt by the defendant to the use of 
 the plaintiff {b) 
 
 The reason why the receipt of the money is a receipt 
 by the defendant for the use of the plaintiff, may be the 
 existence of circumstances altogether independent of a 
 contract between the parties, or it may be the existence 
 of an agreement of some sort on the part of the defendant 
 to hold certain money for the use of the plaintiff. In the 
 first case, the rule that a consideration must move from 
 the plaintiff is inapplicable, since no contract exists. In 
 the second case, the rule is hard to apply, since there is 
 often a difficulty, even though a contract exists, in fixing 
 upon any real consideration in the ordinary sense of that 
 term. 
 
 " It is not a rule of universal application, that it is 
 necessary to show privity in order to maintain an action 
 for money had and received. There are many cases in 
 which the action will lie, although there is no privity of 
 contract. For instance, where money has got into the 
 hands of a party by means of some tortious act, this ac- 
 tion will lie at the instance of the real owner of the 
 money." {c) Where the plaintiff's goods are taken and 
 sold by the defendant, {d) where money has been obtained 
 from the plaintiff by fraud, {e) by duress of his person or 
 
 (b) Moses V. Macfarlanc, 2 Hnrr. looo, mo; see unff ; Hullcn. Pleadings, 
 3rd ed., 44. 
 
 (c) Collins V. Brook, 5 II. & N. 706, jucigmeiit of Cromi'TON, J. 
 
 {(i) Lithgoe v. Vernon, 5 II. & N. 180 ; 29 L. J. 164, Ex. ; ^lamblcy r 
 Trott, T Cowp. 371. 
 
 (e\ Holt V. Ely, l E. & B. 795 ; Andrews v. Hawlcy, 26 L. J. 323, Ex.
 
 io8 PARTIES TO ACTIONS. 
 
 property, by oppression, or by fraudulent use of 
 [92] Icijal process, (/) in consideration of doing that 
 which the person obtaining it was legally bound to 
 do without payment, {g) and generally wherever the de- 
 fendant has committed a tort which resulted in his ob- 
 taining money from the plaintiff, an action lies for money 
 received. (//) 
 
 So, where no tort has been committed, e. g., where 
 mone}' is paid by one person to another under a mistake 
 of fact, {i) (as when one person gives another change for 
 a bank-note, both parties believing it to be genuine, and 
 it turns out to be forged, {k) ) or money has been paid for 
 a consideration which has utterly failed, (/) and in other 
 instances of the same sort, the action for money had and 
 received often lies. 
 
 In these and similar cases it is clear that the basis oi 
 the action is in no sense the existence of a contract, that 
 the existence, therefore, of " privity " between the plain- 
 tiff and defendant is not necessary, {m) and that the 
 ordinary rules as to the person to sue for a breach ol 
 contract do not apply. 
 
 The ultimate ground on which the plaintiff rests his 
 claim in the action for money received is that the defend- 
 ant holds money of the plaintiff's which justice requires 
 that the defendant should pay over to him. But though 
 the reason why justice requires that the money should be 
 paid to the plaintiff may be the existence of facts which 
 have no connection with a contract, the reason more 
 generally is that the defendant has received money 
 [93] which he has expressly or impliedly (w) {i. e., by his 
 acts) undertaken to hold for the plaintiff and pay 
 
 (/) Medina v. Groves, 10 Q. Ti. 152 ; Cadaval v. Collins, 4 A. & E. 858. 
 
 {g) Parker v. Great Western Rail. Co., 7 M. & G. 253. 
 
 {h) See further, for exam]5les, Leake, Contracts, 52-57; Marriott v. Hamp- 
 ton, 2 Smith, L. C, 6th ed., 376, notes. 
 
 (/) Kelly V. Solari, 9 M. & W. 54. 
 
 (,k) Woodland v. Fear, 26 L. J. 204, Q. B. ; 7 E. & B. 522, judgment o 
 Campbell, C. J. 
 
 (/) Ibid. See Leake, Contracts, 61, 62. 
 
 (m) Collins v. Brook, 5 H. & E. 708, judgment of Byles, J. 
 
 («) Williams v. Everett, 14 East, 5S2.
 
 ACTIO XS ON CONTRACT. 109 
 
 over to him. Hence it is often true that " in order to 
 maintain this action, there must be a privity {0) between 
 the plaintiff and the defendant." (/) 
 
 The cases which, though depending upon the existence 
 of a contract, present some peculiarity, are those in which 
 B. pays money to X. under directions to pay it over to 
 A. 
 
 The question then arises (supposing X. not to pay over 
 the. money), is the action against him to be brought by A. 
 or by B. ? To this the answer is, that X. is liable to A., 
 if he has expressly or by his acts undertaken with A. to 
 hold the money as the money of A., and must in that case 
 be sued by A. If he has not so undertaken, he is liable 
 not to A., but to B., and must be sued by B. 
 
 " If a debtor by an order given to his agent appro- 
 priates a fund in his hands to the discharge of the debt, 
 and the agent pledges himself to the creditor so to appro- 
 priate the fund, the order is irrevocable, and the creditor 
 
 may sue such agent But the creditor can 
 
 not sue the agent unless the latter has assented to the 
 appropriation so as to pledge himself to the creditor ; for 
 otherwise the debtor may countermand the order, and 
 there is no privity between the creditor and the agent." {q) 
 
 " It does not appear," it has been said, in a case 
 answering to that supposed, " that [B.] might not have 
 countermanded the payment to the plaintiff | A.] at any 
 time before he actuallv received the money. Nor is it 
 shown that the plaintiff has been induced to do any act 
 on the faith of receiving payment from the defendant. If 
 it had been proved that the defendant [X.] had, as it 
 were, attorned to the plaintiff, and agreed to hold [94] 
 the money for his use, and not subject to the 
 direction of [B.], the case would have been different." is) 
 
 {o) I Selwyn, N. ?., 13th cr]., 119. 
 
 (/>) Lilly V. Hays, 5 A. & E. 548 ; Noble v. National Discount Co . 20 L 
 J. 210, Ex. ; 5 H. & N. 225 ; Liversidge v. Broadbeiit, 4 II. & N. 603 ; 28 L. 
 J. 332, Ex. 
 
 (q) Forth v. Stanton, i Wms. Saund. 210/'. note (a). Compare Collins t. 
 Brook, 5 II. & N. 705, judgment of Williams, J. 
 
 {:) Howell v. Batt, 5 \\. & A<1. 506, judj^mcnt of Parke, J.
 
 no PARTI US TO ACTIONS. 
 
 The general principle therefore is, that where B, pays 
 money to X. for A., X. can not be sued by A. until there 
 has been some undertaking on his part, either by word or 
 act, to hold the money as the money of A., and that as 
 long as B. can withdraw the order to pay to A. {i. e., as 
 long as the money continues B.'s), X. can not be sued by 
 A., but must be sued, if at all, by B. 
 
 It is difficult to apply to this case the rule that the 
 person to sue must be the person from whom the con- 
 sideration moves ; for, though it is clear that X.'s under- 
 taking or promise to hold for A, is the ground of his 
 liability to A. (when he is so liable ), it is not equally 
 clear what is the consideration from A.'s side for this 
 undertaking. 
 
 The consideration is the consent of A. that X. should 
 receive the money for him. The creditor A. suffers X. to 
 be his agent to receive the money due to him from B. 
 " There is," [therefore], " a consideration moving through 
 the instrumentality of the original debtor [B.] to the 
 defendant [X.] as agent for tlie plaintiff [A.] " (/). " The 
 facts show that the defendant [X.] was the agent of the 
 plaintiff [A.]. That agency supplies the consideration. 
 To constitute an agency there must have been an agree- 
 ment, either express or to be inferred from what has been 
 said on one side and adopted on the other." {it) 
 
 The expression consideration is, in these transactions, 
 used in a strained sense. The contract may possibly be 
 considered one which is valid without the existence of 
 an}' real consideration moving from the plaintiff to the 
 defendant. At any rate in an action for money had and 
 received a direct consideration moving from the 
 [95] plaintiff is seldom shown. (;ir) The matter to be con- 
 sidered, in order to determine whether the sendei 
 of the money, B., or the intended recipient. A., ought to 
 sue the defendant, X., is. has or has not X. either expressly 
 or by his acts agreed with A. to hold the money as the 
 
 it) Lilly V. Hays, 5 A. & E. 550, per Pattison, J. 
 
 (m) Ibid., 550, 551, per Coi.ERlDGP, J. 
 
 (x) Lilly V. Hays, 5 A. & E. 550, per Pattison, J.
 
 ACTIONS ON CONTRACT. in 
 
 money of A. ; or in other words, whether the money has 
 ceased to be the money of the original owner B. As long 
 as B. can countermand the order to pay to A. the money is 
 tiie money of B. But when X. has pledged himself to X. 
 to hold the money as money of A., then B. can not coun- 
 termand the order, and the money is the money of A. held 
 by X. for his use. {y) 
 
 The inquiry whether X. has or has not undertaken to 
 hold -the money as the agent of A., for whom it is sent, 
 often resolves itself into a nice question of fact. 
 
 B., residing abroad, remitted bills to X. & Co. (the 
 defendants), his bankers in London, with directions to 
 pay the amount of the bills m certain proportions to A. 
 (the plaintiff) and other creditors of B. X. & Co. refused 
 to act upon B.'s instructions, and though tbey received 
 the amount due on the bills, did not pay A. It was held 
 that no action could be brought by A. against X. & Co., 
 since the defendants never assented to hold the money 
 for the use of A., but held it to the use of B. and subject 
 to his directions, {z) 
 
 " It will be observed," it is laid down in the judgment 
 in this case, " that there is no assent on the part of the 
 defendants to hold this money for the purposes mentioned 
 in the letter [from B.], but on the contrary, an express 
 refusal to the creditor [A.] so to do. If, in order to con- 
 stitute a privity between the plaintiff and defendants, 
 as to the subject of this demand, an assent express or 
 implied be necessary, the assent can in this case be only 
 an implied one, and that, too, implied against the 
 express dissent of the parties to be charged. By [96] 
 the act of receiving the bill, the defendants agree 
 to hold it till paid, and its contents when paid, for the use 
 of the remitter. It is [open] to the remitter to give and 
 countermand his own directions respecting the bill as 
 often as he pleases, and the ])ers()ns to whom the bill is 
 remitted may still hold the bill till received, and it 
 amount when received for the use of the remitter himself; 
 
 ( v) See Hoflgson v. Anderson, 3 IJ. vl- C S42. 
 (2) Williams v. EveieU, 14 East, 582.
 
 112 PARTIES TO ACTIONS. 
 
 until, b}'^ some eno^ac^cmcnt entered into by themselves 
 with the person who is the object of the remittance, tney 
 have precluded themselves from so doing, and have 
 appropriated the remittance to the use of such person. 
 After such a circumstance they can not retract the con- 
 sent they may have once given, but are bound to hold it 
 for the use of the a]')pointee. If it be money had and re- 
 ceived for the use of the plaintiff under the 'Orders which 
 accompanied the remittance, it occurs as fit to be asked, 
 when did it become so? It could not be before the 
 mone}' was received on the bill becoming due ; and at 
 that instant suppose the defendants had been robbed of 
 the cash or notes in which the bill in question had been 
 paid, or they had been burnt, or lost by accident, who 
 would have borne the loss thus occasioned ? Surely the 
 remitter [B.], and not the plaintiff and his other creditors, 
 in whose favor he had directed the application of the 
 money according to their several proportions to be made. 
 This appears to us to decide the question ; for in all 
 cases of specific property lost in the hands cxf an agent, 
 where the agent is not himself responsible for the cause 
 of the loss, the liability to bear the loss is the test and 
 consequence of being the proprietor, as the principal of 
 such agent." {a) 
 
 B., the acceptor of a bill of exchange which had been 
 dishonored, transmitted to X. another bill, the proceeds 
 of which were to be employed in paying the dishonored 
 bill. X. undertook, in a letter to B, that the money 
 
 should be carried to B.'s account. It was held {b) 
 [97J that A., the holder of the dishonored biH, could not 
 
 bring an action against X., for " where a party to 
 whom a bill is remitted repudiates the trust with which 
 the bill is clothed, that may give to the person remitting 
 the bill a right to bring trover for it ; but it does not give 
 any right of action to the person on whose account the 
 bill is directed to be applied, and unless some agreement 
 had taken place between the defendant and the plaintiff^ 
 
 (a) Williams v. Everett, 14 East, 596, 597, per Curiam. 
 \l>) Yates V. Bell. 3 B. & AM. 643.
 
 ACTIONS ON CONTRACT. 113 
 
 the former could only be considered as holding- the bill 
 for the use of [the remitter]." {c) 
 
 B. sent a bill to X. to be paid to A. in payment of a 
 debt due from B. to A. X. got the bill accepted, and 
 wrote to A., stating that he had a commission from B. to 
 pay A. some money, and asking how it should be deliv- 
 ered. While the bill remained in X.'s hands, he received 
 directions from B. not to pay A. until an investigation of 
 accounts should have taken place. This investigation did 
 not take place, and X. retained the bill, and did not pay A. 
 It was held that A. could not sue X. The action was 
 in form an action of trover, but the principle on which it 
 was decided applies to an action for money received, {d) 
 
 " The only question is, whether there is anything to 
 differ the case from Williams v. Everett in what has been 
 done between the party to whom, and the party for 
 whose use, the bill was remitted. The principle on which 
 this case was put was, as stated ty Lord Ellenborough, 
 (e) that the remittees ' may hold the bill till received, and 
 its amount when received, for the use of the remitter 
 himself, until, by some engagement entered into by them- 
 selves with the person who is the object of the remittance, 
 they have precluded themselves from so doing, and have 
 appropriated the remittance to the use of such person.' 
 But instead of that, what is done here? There 
 is, certainly, the letter of the defendant agreeing to [98] 
 hold for the plaintiff, but there is no assent of the 
 plaintiff to receive it as payment; it is only an inchoate 
 offer, on the part of the agent, to hold the bill for the 
 remittee, if he assents. I find no such appropriation here 
 as is referred to by Lord Ellenborough." (/) It follows, 
 therefore, that where X.'s consent to hold money of B. 
 for the use of A. is only conditional, no action can be 
 brought by A. until the condition is fulfilled, {g) 
 
 {c) Yates V. Bell, 3 B. & Aid. 645, jud{;ment of Abbott, C. J. 
 {d) Brind v. Hampshire, i M. & W. 365. 
 (e) 14 East. 596. 
 
 (/) Brind v. Hampshire, I M. & W. 373, 374, judgment of Boi.LAND, B. 
 {g) Malcolm v. Scott, 5 Exch. 601 ; Hudson v. Billon, 6 E. & B. 565; 26 
 L. J. 27, Q. I',, 
 b
 
 114 PARTIES TO ACTIONS. 
 
 The assent, on the other hand, of X. to hold money 
 of B. for the use of A., gives A. a right of action. B., 
 a debtor of A., transmitted to X. money, which X. ad- 
 mitted having received, and on being informed that it 
 was meant to be paid to A., said that he would pay it to 
 A., and this statement was repeated to A. by X.'s author- 
 ity. It was held that A. could sue X. for money had and 
 received, on the ground that X. had stated in effect that 
 he held the money to A.'s use, and had allowed him to be 
 told so, (//) and that the agency constituted between A. 
 and X. was a sufficient consideration for the agreement 
 on X.'s part to hold the money of A. The action could 
 not, in this case, have been maintained unless the de- 
 fendants had communicated to the plaintiff that they held 
 the money for his use. Thus, where B. transmitted to X. 
 & Co. money to be paid by them to A., and they prom- 
 ised B. to pay A., but had no communication with A., it 
 was held that A. could not sue X. & Co. (?) 
 
 The question, who is the right plaintiff in an action 
 for money received, is often complicated by the rules 
 forbidding the assignment of the right to bring an 
 
 action. (/) 
 [99] Suppose that B. owes A. ;£'ioo, and that X. 
 
 owes B. i^ioo. In this case B., instead of sending 
 money to A., perhaps directs X. to pay the ;^ioo to A. 
 
 If X. does not pay A., the question whether A. or B. 
 have a right of action against X. depends not only upon 
 the answer to the question whether X. has assented to 
 hold the ^100 for the use of A., but also upon the reply to 
 the further inquiry whether X.'s debt to B. has been ex- 
 tinguished. For otherwise there is no consideration for 
 X.'s undertaking to incur a debt to A., and it is clear 
 that B.'s claim against X. can not be directly transferred 
 to A. In other words, by an agreement between the 
 three parties B., X., and A., by which B. gives up his 
 
 (h) Lilly V. Hays, 5 A. & E. 548. 
 
 (t) Moore v. Bushell, 27 L. J. 3, Ex. 
 
 (j) See Rule 6, and Rule 15, Exception 3. Compare Lampleigh v. Braith- 
 wait, I Smith, L. C, 6th ed., 143, notes •, Fleet v. Perrins, L. R. 4, Q. B. 500 
 (Ex. Ch.).
 
 ACTIONS ON CONTRACT. 115 
 
 claim against X., and X. incurs a new liability to A., a 
 contract may be formed between X. and A. But B. can 
 not transfer to A. his right to sue X., and therefore A.'s 
 right of action depends on the existence of this contract. 
 X. (the defendant) was indebted to B., and B. was indebted 
 to A. B. by a document in writing agreed to authorize 
 X. to pay A. the amount of B.'s debt to A. At the foot 
 of the document X. wrote the word " acknowledged." 
 It was held that A. could not maintain an action against 
 X. ik) 
 
 " There are two legal principles which as far as I know 
 have never been departed from. One is that at Common 
 Law a debt can not be assigned so as to give the assignee 
 a right to sue for it in his own name, except in the case 
 of a negotiable instrument; (/) and that being the law it 
 is perfectly clear that [B.] could not assign to the plain- 
 tiff [A.] the debt due from the defendant [X.] to him. . . 
 The other principle which would be infringed by allowing 
 this action to be maintained, is the rule of law that a bare 
 promise can not be the foundation of an action. Ex 
 nudo pacto non oritur actio. Applying these 
 principles to the present case, I am clearly of [100] 
 opinion that the action can not be maintained. 
 . . . " There was nothing in the nature of a considera- 
 tion moving from the plaintiff to the defendant ; but a 
 mere promise by the defendant to pay another man's debt. 
 No doubt there are cases in which the courts have been 
 desirous to give their sanction to arrangements of this 
 kind. Amongst others, Lilh' v. Hays (»?) was cited ; but 
 in that case the defendant had a sum of money in his 
 hands, which he admitted that he held for the plaintiff's 
 use, and promised to pay it to him ; so that he was in 
 the situation of an agent for the plaintiff, and on that 
 ground it was held the plaintiff might recover it as money 
 received to his use. The same observation a])plies to the 
 case of Walker v. Rostron. («) There the agent for the 
 
 (k) Liversic'.ge v. 'Jroaf.bcnt, 4 II. & N., 603 ; 28 L. J. 332, Ex. 
 
 ( / ) Rule 1 5, Kxcepiion 2. 
 
 («/) 5 A. & I-:. 548. 
 
 («) 9 M. & W. 411 ; II I,. J. 173, Ex.
 
 ii6 PAR TIES TO ACTIONS. 
 
 purchaser of o-^xhIs inulcrtook, by an agreement which 
 the vendor and purchaser were also parties, to pay bills 
 of exchange, given for the price of the goods, out of 
 certain specified funds which he expected to receive, and 
 that was held to be an appro[)riation of the funds, irre- 
 vocable except bv the consent of all parties. The same 
 principle prevails with respect to bankers. A banker is 
 in the position of a person having in his hands the money 
 of another which he is at any moment liable to be called 
 upon to pav, and the courts have grasped at that to make 
 a contract between the banker, his customer, and a third 
 party, for the payment of money to the latter, operate as 
 a transfer of the money, so that an action for money had 
 and received can be maintained for it. Here there is no 
 money had and received to the use of the plaintiff. In 
 Israel v. Douglas, {o) there was a consideration to support 
 the promise. Here there is nothing more than a transfer 
 of a chose in action ; and without violating the two rules 
 of law to which I have adverted, this action can not be 
 
 maintained." (/) 
 [loi] B. was indebted to A. (the plaintiff), and agreed 
 
 with X. & Co. (the defendants), who were indebted 
 to B., that they should discount bills drawn by B. and 
 accepted b}'- X. A. presented the bills to X. & Co., who 
 were bankers. X. & Co. would not immediately pay A. 
 the amount of the bills, but gave a check to B.'s clerk, 
 which, as well as a further amount due on the bills, they 
 promised to pay next day on B.'s order. X. & Co. re- 
 ceived B.'s order, but afterwards, on B. having stopped 
 payment, refused to pay A. It was held that A. might sue 
 X, & Co. for money received, on the ground that from the 
 time of receiving B.'s order, the defendants held the 
 money for the use of the plaintiff, {g) 
 
 ((?) r H. Black. 239. 
 
 ip) Liversidge v. Broadbent, 4 H. & N. 611, 612, judgment of Martin B» 
 
 Iq) Noble v. National Disct. Co., 5 H. & N. 225 ; 29 L. J. 210, Ex.
 
 ACTIONS ON CONTRACT. 117 
 
 Rule i 2. — The person to sue for the breach of a 
 contract by deed is the person with whom the con- 
 tract is expressed by the deed to be made ; i. e., the 
 covenantee, {r) 
 
 A covenant is an agreement by deed, {s) In every 
 covenant, therefore, there is a covenantor who promises, 
 and a covenantee {t) to whom the promise is made. The 
 person to bring an action for a breach of the covenant 
 must be the covenantee. 
 
 This rule holds good because a covenant differs from 
 a simple contract in the following particulars. A cove- 
 nant is good without the existence of any consideration 
 to induce the covenantor to enter into the covenant, 
 [102] {ti) whilst a simple contract is not valid if made 
 without a consideration. A covenant, again, is not 
 a covenant with any person except the covenantee ; but a 
 simple contract, though made on the face of it with one 
 person, and therefore giving him a right to sue upon it, 
 may be often treated as a contract made with some other 
 person whose name does not appear on the face of the 
 contract, but who, as being the person really contracted 
 with, has a right to sue upon the contract, {v) 
 
 X., for example, covenants with A. to pay him £\o. A. 
 can sue X. if the covenant be broken, even though there 
 were no consideration whatever to induce X. to enter 
 into the covenant. Suppose, again, that it were perfectly 
 well known that the covenant was made with A., simply 
 as agent for M., and was intended for M.'s benefit, still if 
 it appeared on the face of the deed to be a covenant with 
 
 (r) Or the representative of such person. See Rule lo, note {a), ante. 
 
 (s) Daviiison, Precedents, 2nd ed., loi ; Touch. i6o. 
 
 (/) In the case of a bond, the person who undertakes the obligation, or the 
 promisor, is calied the obligor, and the person in respect of whom the obliga- 
 tion is undertaken, or the pr<»misee, is called the obligee. 
 
 (u) Compare Rule II. This appears a more accurate way of stating the 
 law than the statement which is often made, that the law presumes a considera- 
 tion in the case of an agreement by deed. (See i Selwyn, N. I'., 13th ed. 
 '20.) 
 
 (t') S^e Chapter V. •
 
 ii8 PARTIES TO ACTIONS 
 
 A., an action for the breach of it would have to be brought 
 by A., and could not be brought by M. (x) 
 
 A covenantee may in general sue on a covenant in a 
 deed which he has not executed, and by the provisions of 
 which he therefore is not bound, {y) for the cases establish 
 that " a covenantee in an ordinary indenture who is a 
 party to it may sue the covenantor who executed it, al- 
 though he himself never did : for he is a part}', although 
 he did not execute, and parties to an indenture may sue, 
 although strangers can not, and it makes no difference 
 that the covenants of the defendant are therein stated to 
 be in consideration of those of the covenantee." {z) 
 
 SUBORDINATE PULE. 
 
 [103] No one can sue on a covenant in an indenture {a) ivJio is 
 not mentioned amorig the parH.-'s io the indenture. 
 
 The meaning of this i^ule is, that cvervone is a stranger 
 to a deed inter partes who is not one of the parties to it, 
 and that, therefore, no one not a party can sue upon any 
 contract contained in it. 
 
 Suppose an indenture to which the parties are A. of the 
 one part and X. of the other part, and that this inden- 
 ture contains a covenant by X. with M. to pay M. ;!^20, 
 M. can not sue X., because M. is not a party to the in- 
 denture. 
 
 " The rule and distinction as to deeds inter partes and 
 deeds not of that character is very old, and to be foi;nc' 
 in the ancient legal authorities ; but it is impossible t 
 
 (x) In the case of a simple contract, M., as the principal really intereste' 
 could sue. See Rule 17, Exceptions 4, 5. 
 
 {}•) Leake, Contracts, 84. 
 
 (s) Pitman v. Woodbury, 3 Exch. ir. per Curiam. But conf. Swatman v 
 Ambler, 8 Exch. 72 ; How v. Greek, 3 H. & C. 391 ; 34 L. J. 4, Ex. 
 
 {a) A deed is either a deed-poll, i. e., a deed made by one party only, and 
 addressed to the world generally, or a deed inter partes, called otherwise an in- 
 denture, purporting to be made between A^ of the one part p.nd X., &c., of the 
 other part, i Steph., Com., 6th ed., 4r)9.
 
 ACTIONS ON CONTRACT. 119 
 
 slate or illustrate it more clearly than is done by Lord 
 Tenterden, in his book on Shipping. . . . He states the 
 rule to be a technical one, and thus illustrates it: — ' If a 
 charter-party under seal is expressed to be made between 
 certain parties as between [W.J and [X.J, owners of a ship 
 whereof [A. J is master, of the one part, and [Y.J and [Z.J, 
 of the other 'part, and purports to contain covenants with 
 [A.], nevertheless [A.J can not bring an action in his own 
 name upon the covenant, and this even although he 
 sealed and delivered the instrument ; but if the charter- 
 party is not expressed to be made between parties, but is 
 written thus, "This charter-party indentured witnesseth," 
 
 it is otherwise.' He adds In the case of Berkeley 
 
 v. Hardy {b) the same rule is laid down, and in the judg- 
 ment it is stated to be a long established technical rule, 
 and one beheved to be peculiar to the law of England. "(<:) 
 
 It is not essential that a person, in order to be a 
 party, should be described among the parties by [104J 
 name. It is enough if the class to which he be- 
 longs is sufficiently designated among the parties, {d) 
 
 Under 8 & 9 Vict. c. 106, s. 5, persons who are not 
 parties may in the case of indentures executed after 
 1st October, 1845, sue on covenants in such indentures 
 which relate to tenements and hereditaments. 
 
 Rule 13. — All the persons with whom a contract 
 is made must join in an action for the breach of it' 
 
 " A contract by one person with two jointly does not 
 comprehend or involve a contract with either of them 
 
 {/.) 5 B. & C. 355. 
 
 (c) Chesterfield Colliery Co. v. Hawkins. 3 II. & C. 692, per Maimin. B. 
 
 {d) Isaacs V. Green, L. R., 2 Ex. 352 ; 36 L. J. 253. Ex. ; M'Laren v. Bax- 
 ter, L. R.. 2 C. P. 539 ; Sunderland Ins. Co. v. Kearney, 20 L. J. 417, Q. B. ; 
 16 Q. B. 925. 
 
 I. Action on Contract. — All the Marys v. Anderson. 24 Pa. .St. 272 ; 
 parties with whom a contract is Clapp v. Rice, r 5 Tiray. 559 ; Harris 
 ni 'fie must join in action upon it. v. .Sw.inson. 62 Ala. "cxi : U'c.irc
 
 120 
 
 PARTIES TO ACTIONS. 
 
 separately," as " is evident from the well-known doctrine, 
 that a covenant or promise to two, if proved in an action 
 brought by one of them, sustains a plea which denies the 
 
 Burge, lo Ired. 171 ; Wright v. Mc- 
 Lemore, 10 Yerg. 235 ; Davis v. 
 Winnamaker, 2 Col. 638. All 
 jointly interested in the matter of a 
 suit ought to join Lyon v. Beriram, 
 20 How. 150; Hill V. Gibbs, 5 Hill, 
 58; Ross V. Allen, 67 111. 318; 
 Michenor v. Dale, 23 Pa. St. 62 ; 
 Day V. Swan, 13 Me 167 ; Riley v. 
 Marshall, 5 Ala. 6S2. Plaintiffs need 
 not be partners if they made the 
 contract jointly. Wood v Fithian, 
 24 N.J. L. 34; Beller v. Block, 19 
 Ark. 567. All those to whom a 
 covenant is expressly made may 
 unite in an action, though only one 
 of them is to be benefited. Bird v. 
 Washburn, 10 Pick. 226; CoUing- 
 ham V. Owens, 71 111. 398; Rob- 
 bins V. Ayres, 10 Mo. 539 ; Ford v. 
 Bronaugh. n B. Mon. 15; Master- 
 son v. Phinizy, 56 Ala. 338 ; Mc- 
 Mahon y. Webb, 52 Miss. 425; 
 Ailing V. Woodruff, 16 La. Ann. 6; 
 McCotter v. Lawrence, 4 Hun, 107 ; 
 Browner v. Davis, 1$ Cal. 11, 
 Blanchard v. Dyer, 21 Me. in; 
 McNairy v. Thompson, i Sneed, 
 148. 
 
 When the contract is made with 
 several jointly all should sue for 
 the breach, unless some good 
 reason is shown in the case why 
 they do not; death or refusal to 
 join may be such reasons. Hays 
 v. Lasater, 3 Ark. 565 ; Moody v. 
 Sewall, 4 Me. 295 ; Sims v. Tyre, 3 
 Brev. 249. 
 
 Non-joinder of any party legally 
 mterested is fatal and may be 
 
 taken advantage of at the trial or 
 be pleaded in abatement. Pitkin v. 
 Roby,43 N. H. 139; White v. Cur- 
 tis, 35 Me. 534; Ball v. Con. F. 
 Co., 32 N. J. L. 102. But the older 
 cases give the preference to the 
 former method. Ehle v. Purdy, 6 
 Wend. 629; Mcintosh v. Long, 2 
 N, J. L. 274 ; Beach v. Hotchkiss, 2 
 Conn. 697; HoUiday v. Doggett, 6 
 Pick. 359; Hilliker v. Loup, 5 Vt. 
 116; Svveigert v Berk, 8 Serg. & 
 R. 308; Morse v. Chase, 4 Watts 
 456; Hansen v Morris, i Blackf. 
 307; Connolly v. Cottle, i 111. 286; 
 Coffee v. Eastland, Cooke (Tenn.), 
 iSgGordon v. Goodwin, 2 Nott & 
 M. /O; Allen v. Luckelt, 3 J. J. 
 Marsh. 165. 
 
 If nonjoinder of plaintiffs appear 
 on the face of the pleading, demur- 
 rer lies through it and may be 
 taken advantage of by motion in 
 arrest of judgment or on error. 
 Crump V. McKay, 8 Jones, 34; 
 Hicks V. Branton, 21 Ark. 189; 
 Pitkin V. Roby, 43 N. H. 139. 
 
 Misjoinder of plaintiffs in actions 
 on contract is fatal and should not 
 be pleaded in abatement, but may 
 be excepted to at the trial. Dore- 
 mus V. Selden, 19 Johns. 213 ; Rob- 
 inson V. Scall, 3 N. J. L. 817; 
 Ulmer v. Cunningham, 2 Me. 117; 
 Waldsmith v. Waldsmith, 2 Ohio, 
 156. 
 
 Since amendment by changing 
 the parties have been allowed by 
 statute objections to misjoinder of 
 i^laintiffs cannot be made for the
 
 ACTIONS ON CONTRACT. 
 
 121 
 
 existence of the contract." {e) If X. contract with A. 
 and B. jointly, e. g., by his promissory note, to pay them 
 ^^20, an action must be brought for a breach of contract 
 
 {e\ Wetherell v. Langston, i Ex. 644, per Curiam. See Cabell v. Vaughan, 
 I Wms. Saund. 291?. 291/fe. 
 
 first time after trial. Dodge v. 
 Wilkinson, 3 Mete. 292. And in 
 general, now, when the misjoinder 
 appears on the face of the pleading, 
 it must be demurred to. Petree v 
 Lansing, 66 Barb. 358 ; Zimmer 
 man v. Schoenfelt, 3 Hun, 698 
 State V. Sappington, 68 Mo. 455 
 Porter v. Clements, 3 Ark. 382 
 Vaiden v. Stubblefield. 28 Gratt 
 157 ; Tilman v. Searcy, 5 Humph 
 487 ; Vaughn v. Lovejoy, 34 Ala 
 441 ; Wornack v. McAhren, 9 Ind 
 6; Parker v. Wiggins, 10 Kan. 424 
 
 The defendant may demur as to 
 one of the plaintiffs, if the facts 
 stated show no cause of action 
 against him. Rumsey v. Lake, 55 
 How. Pr. 340 ; Clarkson v. De Pey- 
 ster, 3 Paige, 336; Gerry v. Gerry, 
 II Gray, 381 ; Hodge v. North Mo. 
 Ry. Co., I Dill. 104; Tennant v. 
 Pfister, 51 Cal. 513; Hardee v. 
 Hall, 12 Bush, 328; Little v. Bine, 
 5 Jones Eq. 10, 
 
 A misjoinder of parties plaintiff 
 may be cured by motion putting 
 them to elect which will proceed. 
 School District v. School Dis- 
 trict 50 Iowa, 324 ; Powell v. 
 Bradlce, 9 Gill & J. 220; or the 
 jury may find for defendant on one 
 count and plaintiff on another. 
 lb. 
 
 A misjoinder of plaintiff's, not 
 appearing upon the face of the 
 complaint, is waived if not objected 
 
 to by demurrer or answer, Hier v. 
 Staples, 51 N. Y. 140; Rickey v. 
 Tenbroeck, 68 Mo. 570 ; by answer, 
 Hastings v. Stark, 36 Cal. 126; 
 Tennant v. Pfister, 51 Cal. 513. 
 The instruction to the jury cannot 
 reach it. Lass v. Eiselben, 50 Mo. 
 123; nor will a demurrer to the 
 answer. McEwen v. Hussey, 23 
 Ind. 395; Bonton v. Orr, 51 Iowa, 
 
 475- 
 
 A plea and answer making ob- 
 jection for non-joinder not appear- 
 ing on the face of the complaint, 
 must show who are the necessary 
 parties. Robinson v. Smith, 3 
 Paige, 330; Story v. Livingston, 13 
 Pet. 375 ; Webster v. Vandeventer, 
 6 Gray, 430 ; Pond v. Clark, 24 
 Conn. 382 ; Bay State Iron Co. v. 
 Goodall, 39 N. H. 234; Lillie v. 
 Case, 54 Iowa, 182; Roberts v. 
 Southern Minn. Ry. Co., 18 Minn, 
 no. 
 
 Suits in Equity. — All persons 
 materially interested in the subject 
 of the suit, or whose interests will 
 be affected by the decree asked for, 
 or who are necessary to put an end 
 to the litigation, should be made 
 parties. Williams v. Bankhead, 19 
 Wall. 571 ; Tobin v. Walkinshaw, 
 I McAU. 29; Northern Ind. R. R. 
 Co. V. Michigan Cent. R. R. Co., 5 
 McLean. 444; Hawlcy v. Cramer, 
 4 Cow, 717; Williams v. Russell, 
 19 Pick 165 ; Stevenson v. Austin,
 
 122 
 
 PARTIES TO ACTIONS. 
 
 by A. and B., and can not be bri)nght by either A. or B. 
 separately. 
 
 X. contracted with A., on behah' of the members of an 
 
 3 Mete. 480; Bailey v. Mayrick, 36 
 Me. 50; Busby v. Littlefield, 31 N. 
 H.193; McConncU v McConnell, 
 II Vt. 290; New London Bank v. 
 Lee, II Conn. 112; Hicks v. Camp- 
 bell, 19 N J. Eq. 186; Oliver v. 
 Palmer, 11 Gill & J. 426; Hawkins 
 V, Chapman, 36 Md. 99; Clark v. 
 Long, 4 Rand. 451 ; Hill v. Proc- 
 tor, 10 W. Va. 78; Vaun v. Har- 
 gett, 2 Dev, & B. Eq. 31 ; Frazcr v. 
 Le^are, i Bailey Ch. 389 ; Gilmore 
 V. Johnson, 14 Ga. 683 ; Duncan v. 
 Mizner. 4 J. J. Marsh. 443 ; Park v. 
 Ballentine, 6 Blackf. 223 ; Fletcher 
 V. Mansur, 5 Ind. 267 ; Prentice v. 
 Kimball, 19 111. 320; Newcombe v. 
 Horton, 18 Wis. 568 ; Kimball v. 
 Connor, 3 Kan. 430 ; James v. Wil- 
 liams, 31 Ark. 117; Iglehart v. 
 Moore, 21 Tex. 504; Lucas v. 
 Bank of Darien, 2 Stew. 280. 
 
 The United States Supreme Court 
 will not make a final decree on the 
 merits unless all persons essentially 
 interested are made parties to the 
 suit, though not within the jurisdic- 
 tion of the court. Russell V. Clark, 
 7 Cranch, 69. 
 
 This is a rule of convenience and 
 may be dispensed with when im- 
 practicable or very inconvenient. 
 Donald v. Plumb, 8 Conn. 457 ; 
 State v. Burkhardt, 59 Mo. 78 ; East 
 Rome Town Co. v. Nagle, 58 Ga. 
 478. And the courts will not allow 
 it to be applied to defeat the pur- 
 pose of justice, if the circumstances 
 of the case render the application 
 of the rule impracticable. United 
 
 States V. Parrott, i McAll. 280; 
 Willeik v. Morris Canal and Bank- 
 ing Co., 3 Green Ch, 398. 
 
 Persons asserting several and dis- 
 tinct rights cannot unite in a joint 
 suit, though their rights are against 
 the same person. Struppman v. 
 Muller, 52 How. Pr. 216; Hen- 
 drickson v. Wallice, 31 N. J. Fq. 
 605 ; Reybold v. Herdman. 2 Del. 
 Ch. 34, Parsons v. Lyman, 4 
 B atch. 433 ; Taylor v. King, 32 
 Mich. 42 ; Farrot v. Parish, 30 La. 
 Ann. 606; Baker v. Rinehard, il 
 W. Va. 249; Ex parte State Bank, 
 15 Ark. 264 But no objection that 
 parties claiming different interests 
 have asserted them in the same suit. 
 Faulk v. Faulk, 23 Tex. 663. So 
 parties whose interest depend upon 
 the same right and who would be 
 affected alike, may be properly 
 joined. Catlin v. Wheeler, 49 Wis. 
 549 ; Creed v. Lancaster Bank, i 
 Ohio St. 6 ; Porter v. Clements, 3 
 Ark. 382. So if where some ground 
 exists in common, so that if one 
 sued the other would have to be 
 made a defendant, both may join, 
 though their rights and titles are 
 neither altogether joint. Bardwell 
 V. Ames, 22 Pick. 353 ; Taylor v. 
 King, 32 Mich. 32. 
 
 Generally, unconnected parties 
 may join in equity if they have one 
 connected interest in the point in 
 issue. Plum v. Morris Canal and 
 Banking Co., 10 N. J. Eq. 259; 
 Smith v. Schulting, 14 Hun, 54 ; 
 Middleton v. Flat River Co., 27
 
 ACTIONS ON CONTRACT. 
 
 123 
 
 orchestra to which A. himself belonged, that he would 
 make them certain payments. It was held that the 
 contract being (under the circumstances of the case) a 
 
 Mich. 534; Cwen v. Frink, 24 Cal. 
 177 ; Farrot v. Parish, 30 La. Ann. 
 607 ; North v. Bradway, 9 Minn. 
 186; Armstrong v. Treasurer, 10 
 Ohio St. 236. As lien-holders may 
 be entitled to similar relief against 
 acts of the debtor which are a com- 
 mon injury to them all, preventing 
 them from enforcing their liens. 
 Clarkson v. De Peyster, 3 Paige, 
 321 ; Love v. Getsinger, 7 N. J Eq. 
 202 ; Hagerty v. Nixon, 26 N. J. 
 Eq. 42; Ruffling v. Tilton, 12 Ind. 
 260 ; Gates v. Boomer, 17 Wis. 458 ; 
 North V. Bradway, 9 Minn. 185 ; 
 Elfelt V. Hinch, 5 Oreg 255 ; Ken- 
 nedy V. Kennedy, 2 Ala. 624; 
 Brown v. Bates, 10 Ala. 436. 
 
 All the holders of notes given to 
 different parties but secured by the 
 same mortgage, may join to fore- 
 close it, though it may be regarded 
 as a several security by each. Tyler 
 V. Yreka Water Co., 14 Cal. 217; 
 Burnett v. Pratt, 22 Pick. 557 ; 
 Thayer v. Campbell, 9 Mo. 279 ; 
 Pogue V. Pratt, 25 111. 352 ; Swen- 
 son V. Plow Co., 14 Kan. 388. 
 
 So material-men, having liens on 
 the same building but without any 
 community of interest in the claims 
 themselves, may join under the 
 statute in an equitable action to en- 
 force their liens. Barber v. Rey- 
 nolds, 33 Cal. 502. 
 
 But parties cannot join to restrain 
 the imposition of a tax on their re- 
 spective lands and not upon any 
 common property owned by them. 
 Magee v. Cutler, 43 Barb. 239. On 
 
 a contract to do work for two par- 
 ties, one cannot sue in equity with- 
 out joining the other or stating an 
 excuse for not doing so. Braintree 
 v. Southworth, 4 Gray, 304. 
 
 Persons having conflicting inter- 
 ests as to the subject matter of the 
 suit should not be joined as com- 
 plainants in a suit in equity, though 
 it is immaterial whether the inter- 
 ests of defendants conflict or not. 
 Parsons v. Lyman, 4 Blatch. 432. 
 
 Misjoinder— Non-joinder.— Co\ir\s 
 of equity are slow to dismiss suits 
 for misjoinder or non-joinder of 
 parties where the difficulty can be 
 remedied or relief given without 
 injuring any one. Bunce v. Gal- 
 lagher, 5 Blatch. 481. 
 
 A bill will not be dismissed for 
 misjoinder of complainants unless 
 their interests are so diverse they 
 cannot, with propriety, be included 
 in one decree. Michan v. Wyatt, 
 21 Ala. 813. 
 
 The method of taking advantage 
 of want of parties to a bill are — i. 
 By demurrer on the record. 2. By 
 demurrer ore tenus. 3. By plea ; 
 and, 4. By answer. Gordon v. 
 Holland, 3 Ired. Eq. 363 ; Stillwell 
 V. McNerly, 2 N. J. Eq. 305. 
 
 A demurrer for want of parties 
 must show the complainant who are 
 the proper parties so as to enable 
 him to amend his bill. Dias v, 
 Bouchand, 10 Paige, 454. 
 
 The objection of defect of parties 
 is deemed waived if not made by 
 demurrer or answer. Davis v.
 
 124 
 
 PA K TIRS TO A C TIONS. 
 
 contract with A. and the other performers, A. could not 
 sue alone for its breach, and the question raised in the 
 case, was not whether A. could sue alone on a contract 
 
 Bcckstein, 69 N. Y. 443 ; Risley v. 
 Wightman, 13 Hun, 165; Reugger 
 V. Lindenberger, 53 Mo. 365 ; Uunn 
 V Hannibal and St. Joe. Ry. Co ,68 
 Mo. 279; Bonton v. Orr, 51 Iowa, 
 475 ; McEwen v. Hussey, 23 Ind. 
 395 ; Baldwin v. Canfield, 26 Minn. 
 58; Daughdrill v. Helms, 53 Ala. 
 65 ; Adger v. Pringle, 1 1 S. C. 543 ; 
 Alley V, Carroll, 6 Heisk. 234; 
 Wing V. Cooper, 37 Vt. 186; Par- 
 chen V. Peck, 2 Mont. 570 ; Spencer 
 V. Van Cott, 2 Utah, 342. 
 
 The objection that some of the 
 plaintiffs have been improperly 
 joined cannot be taken at the hear- 
 ing. Bowman v. Burnley, 2 Mc- 
 Lean, 376; Trustees of Watertown 
 V. Cowen, 4 Paige, 510. 
 
 Where the objection that one of 
 the complainants has no interest in 
 the suit appears on the face of the 
 bill, it can only be taken advantage 
 of by demurrer. Talmage v. Pell, 
 9 Paige, 410. 
 
 Where the objection of the want 
 of a party complainant does not 
 appear on the face of the bill, it must 
 be taken advantage of by plea and 
 answer. It is too late to make such 
 formal objection for the first time 
 at the hearing. Story v. Livingston, 
 13 Pet. 359. 
 
 A bill should not be dismissed for 
 non-joinder of parties without op- 
 portunity first given the plaintiff to 
 amend. Colbert v. Daniel, 32 Ala, 
 314. But where the Chancellor 
 propose to the complainant to 
 amend his bill, which is defective 
 for want of the necessary parties, 
 
 and he refuses to do so, it may be 
 dismissed. Goodman v. Benham, 
 16 Ala. 625. 
 
 The court may itself state the 
 objection of want of proper parties 
 and refuse to proceed to make a 
 decree. Morse v. Machias Water 
 Power Go., 42 Me. 1 19. 
 
 It is a ground of demurrer to the 
 whole bill that one of the complain- 
 ants has no interest in the suit, and 
 was improperly joined, but there is 
 no such rule in regard to the de- 
 fendants. Clarkson v. De Peyster, 
 3 Paige. 336 ; Barstow v. Smith, 
 Walk. Ch, 394. 
 
 McAllister, J., in Tobin v. Walk- 
 inshaw, i McAU. 26, considers the 
 joinder of parties in equity in the 
 United States courts very practi- 
 cally and fully, as follows : 
 
 "In regard to the want of parties 
 in this case, which gives rise to the 
 question of jurisdiction, it has been 
 urged by complainants that it is too 
 late for defendants to object to a 
 want of parties, and that this was 
 matter only for a plea in abate- 
 ment. 
 
 " Now, a plea for want of parties 
 is not matter for abatement. It is 
 a plea in bar, and goes to the whole 
 bill, as well to the discovery as to 
 the relief prayed. Again, the rule 
 is that if want of parties is apparent 
 on the face of the bill, the defect 
 may be taken advantage of by de- 
 murrer. If such defect be vital, it 
 may be insisted on at the hearing, 
 and if the court proceed to a decree, 
 such decree may be reversed. If
 
 ACTIONS ON CONTRACT. 
 
 \2S 
 
 With A. and B. jointl}', but whether the particular contract 
 was a joint contract. (/) 
 
 X. covenants with A. and B. Neither A. nor B. [105] 
 jan sue separately for a breach of the covenant ; 
 
 (/) Lucas V. Beale, lo C. B. 739 ; 20 L. J. 134, C. P. If A. had been acting 
 merely as agent for the orchestra, and the contract had been with him, he inigh 
 probably have sued (see Rule 17, Exception 4). But he was himself one of the 
 parties with whom the contract was made, and not a mere agent with "whom a 
 contract was made on behalf of others. 
 
 the defect is not apparent on the 
 bill, it may be propounded by way 
 of a plea, or it may be relied on in 
 a general answer. 
 
 " The thirty-ninth rule of equity 
 expressly gives the right to defend- 
 ant to avail, in his answer, of any- 
 thing which would be good in the 
 form of a plea in bar, and the fifty- 
 second rule provides that where 
 defendant, by his answer, sug- 
 gests the want of parties, plaintiff 
 shall be at liberty, within fourteen 
 days after answer filed, to set down 
 the cause for argument upon that 
 objection alone. These rules evi- 
 dently authorize a party to avail 
 himself of a defect for want of par- 
 ties as effectually in his answer as 
 by plea in bar. 
 
 " Had defendants availed them- 
 selves of the right to plead in bar, 
 much time and discussion would 
 have been saved. But they have 
 the right to bring forward their 
 objection in the form of an answer. 
 Having done so, I am called on to 
 deride if there are such parties be- 
 fore the court as will authorize it to 
 adjudicate upon this cause, whether 
 this court be deemed to be a court 
 of general equity jurisprudence, or 
 whether the peculiar structure of 
 the limited jurisdiction of this court, 
 under the constitution and laws of 
 
 the United States, be considered." 
 
 Then proceeding, he says, after 
 a view of the authorities : 
 
 " The principles deducible from 
 the foregoing authorities are : 
 
 " I. That the general rule in 
 equity is that all persons whose in- 
 terests may be materially affected 
 by the decree must be before the 
 court to enable it to act. 
 
 " 2. That this rule may be re- 
 laxed so as to dispense with formal, 
 and under certain circumstances, 
 with necessary parties. 
 
 " 3. That the rule which has been 
 announced by the decisions of the 
 Supreme Court of the United States 
 is but a reiteration of the doctrine 
 of a court of equity in the applica- 
 tion of its chancery jurisdiction. 
 
 " 4. That the act of congress of 
 February 28th, 1839, ''■"•^^ ^^^^ forty- 
 seventh rule of equity, which allow 
 one or more defendants to be sued 
 in the absence of others without 
 the jurisdiction of the court, apply 
 only to competent parties, and are 
 simply an affirmance of previous 
 decisions of the Supreme Court of 
 the United States, and do not vary 
 the rule as to indispensable parties. 
 17 How. 141. 
 
 " 5. That the peculiar structure 
 of the limited jurisdiction of the 
 courts of the United States does
 
 r2t> 
 
 PARTIES TO ACTIONS. 
 
 and even if B. has not executed the deed, still he must 
 join with A. in an action on the covenant, {g) for the par- 
 ties who have not sealed may sue together with those who 
 
 ig) Petiie V. Buiy, 3 B. & C. 353. 
 
 not abolish or modify the rule as 
 to indispensable parties, and that 
 the fact that such are without the 
 jurisdiction will not enable the 
 court to proceed against the parties 
 before it 
 
 "6. That it has been decided by 
 the Supreme Court of the United 
 States (12 Wheat. 194), that where 
 complainant seeks to set aside a 
 fraudulent purchase of land by de- 
 fendant, and to enjoin his proceed- 
 ing on a judgment he had obtained 
 in an ejectment at law against com- 
 plainant, the party through whom 
 the latter claimed his equitable title 
 was an indispensable party. 
 
 " 7. That it has been decided in 
 the English chancery (i Beav. 106), 
 that one tenant in' common can- 
 not, without joining with him his 
 co-tenant, sustain a bill in equity 
 against the trespasser in possession, 
 and enjoin him from setting up an 
 outstanding term, inasmuch as the 
 bill prayed for the delivery of title- 
 deeds and account of rents, these 
 being matters in which the absent 
 person was interested, and was 
 therefore and indispensable party ; 
 that where a question arises as to 
 parties, it is not for the complain- 
 ant to say the court must proceed 
 to a hearing when he (complain- 
 ant) may disclaim a part of the re- 
 lief and obtain the balance ; and 
 lastly, that the fact that the absent 
 party resided out of the jurisdiction 
 of the court made no difference in 
 
 the application of the rule. 
 
 " 8. That it has been decided 
 that where bill is filed to compel 
 defendant to transfer to complain- 
 ant a share in a mine fraudulently 
 obtained by him, and to account 
 for the profits thereof, jurisdiction 
 may be sustained on the ground 
 that the bill seeks only a specific 
 share in the profits thereof; but it 
 was expressly affirmed that if the 
 bill had sought for a delivery of 
 title-papers, which touches the in- 
 heritance, or for an account of the 
 mines, these being matters in which 
 the other adventurers in the mine 
 were interested, the court could not 
 proceed, such other adventurers 
 
 being indispensable parties. 
 
 * * * * * * * 
 
 " In this case, I am satisfied that 
 the owners of the mines are parties 
 whose interests must necessarily be 
 affected by any decree which can 
 be made in conformity with this 
 bill. Cases are also cited to show 
 that the courts of the United States 
 will consider the rule as to parties 
 flexible where the absent persons 
 who should be made parties are 
 out of the reach of the process of 
 the court, but in each of them it 
 will be found that the utmost ex- 
 tent to which a relaxation has been 
 carried has been to dispense with a 
 necessary party only. But there is 
 one feature m this case which dis- 
 tinguishes it from all others. It is 
 that two of the absent persons whose
 
 ACTIONS ON CONTRACT. 127 
 
 have sealed, and as they may sue, they must sue, and an 
 action can not be maintained without them, {h) 
 
 Nor does it make any difference that the covenantee 
 who has not executed a deed does not assent to the cov- 
 enant, and afterwards disclaims it. It is still necessary 
 that he should join with his co-covenantee in an action for 
 the breach of covenant. Thus, where X. covenanted with 
 
 A. and B. jointly, and B. did not execute the deed, but 
 refused his assent to the covenant, and afterwards dis- 
 claimed it in a deed to which X. was no party, it was held 
 that A. could not sue X. without joining B. " The 
 meaning of the words of the covenant .... is that 
 the defendant will pay the two covenantees," and " that 
 meaning is the same whether they accept the covenant or 
 not, and the acceptance of the one, and the refusal of the 
 other, does not convert it into a covenant to one only." 
 {{) It was also held that A. could not in this case {J) 
 compel B. to let his name be used, since the court would, 
 on B.'s application, strike out his name when used as a 
 co-plaintiff, {k) and hence, in effect, that A. could neither 
 directly nor indirectly bring an action without the assent 
 of B. ' 
 
 It is often hard to determine who are the persons with 
 whom a given simple contract is made, and who, therefore, 
 must sue for its breach. The difficulty is often, 
 though, not invariably one of interpretation, i. c, [106] 
 of determining from the words of a given contract 
 whether it is to be interpreted as a contract with A. and 
 
 B. jointly, or a contract with A. and B. severally. (/) 
 
 {h) Ibid. 355, judgment of Abbott, C. J. 
 
 (?) Wetherell v. Langston, i Exch. 644, per Curiam. 
 
 (j) But see post. 
 
 {k) Langston v. Wetherell, 27 L. J. 400, Ex. 
 
 (/) See as to interpretation, /(jj/. 
 
 interest would be afieded by a de- if bringing them before the court 
 
 crce, are residents of this city and this case would be beyond its 
 
 within the reach of the process of jurisdiction, can the court, by in- 
 
 this court. The one reason for direction, adjudicate upon their 
 
 their omission as parties is the fact rights and thus do indirectly what 
 
 that their introduction would oust it would not rightfully directly do ? 
 
 the 'urisdiction of this court. But I think not.
 
 128 PARTIES TO ACTIONS. 
 
 Where (.lie question is in)t one merely of interpretation 
 the main principles for the determination of this question 
 are as follows : — 
 
 I St. Where there is a separate consideration proceed- 
 ing from different persons, there is considered to be a 
 contract with each of them, and they, therefore, can not 
 join in an action for breach of contract. Thus, where 
 two persons contracted to assist the defendant with their 
 respective horses, and were to give in their accounts sep- 
 arately, it was held that there was a separate contract with 
 each of them, and that they could not bring a joint action 
 for the hire of their horses, [m) 
 
 2nd)3\ Where the consideration moves from several 
 persons jointly, such persons, as having the joint legal 
 interest in the contract, should be joined as plaintiffs in 
 suing for a breach of contract, {n) Thus, where X. con- 
 tracted with A. for the service of A. and of other persons, 
 and the consideration [sc. the joint services of A. and these 
 persons), proceeded from A. and them, it was held that 
 the contract was a joint contract with A. and the other 
 persons thereto, and that they must join m suing for its 
 breach. (<?) Where, again, A. and B. who were bail, em- 
 ployed X. to surrender their principal, it was held that 
 the only contract which the law could imply was a con- 
 tract with A. and B. jointly, and that A. could not sue 
 alone for a breach of the contract. (/) " Taking the case 
 most favorably for the plaintiff, [A.] and supposing 
 [107] the whole consideration to have been paid by him- 
 self and [B.], they were jointly interested, and 
 neither of them could maintain a separate action." {q) 
 
 It has been laid down, that " though the consideration 
 be joint, yet, if the promise is several, the several prom- 
 
 (w) Smith V. Hunt, 2 Chit. 142 ; Brand v. Boulcott, 3 B. & P. 235. 
 («) Broom, Parties, s. 20. Hill v. Tucker, I Taunt. 7 ; Cory ton v. Lithebye, 
 2 Wms Saund. iita ; Chanter v. Leese, 4 M. & W. 295 ; Lucas v. Beale, 10 C. 
 
 B. 739 20 L. J. 134, C. P. ; Pugh V. Springfield, 3 C. B., N. S., 2 ; 27 L. J. 34 
 
 C. P. 
 
 ip) Lucas V. Beale, 10 C. B. 739 ; 20 L. T. 134, C. P. 
 
 (/ ) Hill V. Tucker, i. Taunt. 7. 
 
 (q) Hill V. Tucker, i Taunt. 9, per Chambre, J.
 
 ACTIONS ON CONTRACT. 129 
 
 isee \i. e., the person to whom the separate promise is 
 made] may sue alone." (r) 
 
 This statement rests on cases such as the following : — 
 
 In consideration that A. and B. would sell to X. their 
 partnership business, X. promised A. to pay him certain 
 sums of money, and it was held, on a motion in arrest of 
 judgment, that A. could maintain an action against X. 
 without joining B. {s) 
 
 " It is true," it was said by Parke, B. in this case, 
 " that no stranger to a consideration can sue ; but in the 
 present case the separate interest of the plaintiff in the 
 partnership fund is the consideration upon which the 
 promise is founded." (/) 
 
 A partner, again, has been held capable of maintaining 
 an action upon an agreement in writing made with him 
 alone, although the agreement related to the business of 
 the firm, and the consideration was a release by the 
 partners in question of a debt due to the firm, [ic) Here, 
 also, stress was laid by the court upon the fact that under 
 the complicated circumstances of the transactions between 
 the parties there was a separate consideration moving 
 from the plaintiff for the contract with him. 
 
 These cases arc not, therefore (it is submitted), incon- 
 sistent with the principle that an action for a breach of 
 contract should be brought by all the persons from whom 
 a joint consideration moves. They go to show that 
 where the consideration is divisible, so that one [108] 
 part of it may be treated as proceeding from one 
 only of the parties to the contract, this separate considera- 
 tion will support -a separate promise to the party from 
 whom it proceeds, who, therefore, may sue alone for the 
 breach of such promise. 
 
 One of two co-plaintifTs has a right (v) to bring an 
 
 (r) Lush, Practice, 3rd ed.. 2r. 
 
 (s) Jones V. RoViinson, I Kxch. 454 ; 17 L. J. 36, Ex. 
 
 (/) Jones V. Robinson, I Exch. 456, judgment of Parke, B. 
 
 (u) Ajacio V. Forbes, 14 Moo., P. C. 160, 
 
 {v) CoMstrast Langston v. Welhercll, 27 L. J. 400, Ex., cited ante, with 
 Emery v. Mucklow, 10 Bing. 23. Tlie dilTerence seems to be that the Courts 
 will not force a person to be treated as a party with whom a contract is made 
 9
 
 I30 PARTIES TO ACTIONS. 
 
 action in the name of both, (.r) nor has the court any 
 power to nitei Icre, unless the co-plaintiff's name be used, 
 not only against his will, but fraudulently, {y) Hence 
 " one of several partners has a right to use the name of 
 the tirm ' {d) in order to bring an action. But a co- 
 plaintiff whose name is used without his permission is not 
 without protection. 
 
 I St. He may obtain an indemnity against costs from 
 the party who makes use of his name ; {a) i. e., he may 
 apply to the court to have such party's proceedings 
 stayed till he gives security for costs, {b) 
 
 2ndly. He may release or settle the action, {c) 
 
 Any one of several co-plaintiffs may give the defend- 
 ant a release f'-om the action, which is good, and may be 
 
 pleaded, unless it is fraudulent, {d) 
 [109] \Vhen two of several co-plaintiffs gave a release 
 
 to the defendant, the court refused to interfere, {e) 
 
 " No doubt this is ... an exercise of a strict legal 
 right in a manner very mischievous and injurious to the 
 other plaintiffs, and for which the parties may perhaps be 
 responsible to another tribunal ; but we have no power to 
 interfere if there be the smallest right or real interest on 
 which the release may operate at law. If the plaintiff 
 [A.] is not suing altogether on behalf of the other plain- 
 tiffs — if he be not a mere name — the release by him is 
 effectual, and we ought not to interfere. A court of law 
 has no machinery for working out the equities of these 
 
 when he has never assented to its being made with him ; but that where two 
 persons have allowed a contract to be made with them, the Couits will allow 
 one of the two to use the name of the other in an action for its breach. 
 
 {x) Emery v. Mucklow, 10 Bing. 23. 
 
 {y) Ibid. 24. 
 
 (2) Whitehead v. Hughes, 2 D. P. C. 259. Strictly speaking, the names of 
 co-partners for actions are not brought in the name of the firm. See Rule 20. 
 
 {a) Whitehead v. Hughes, Ibid. 25S. 
 
 {b) Laws V. Bott, 16 M. & W. 300. The plaintiff whose name is used has 
 not, however, in all cases an al)solute right to an indemnity against costs. Emery 
 V. Mucklow, 10 Bing. 23. 
 
 (c) Crook V. Stephens, 5 B. N. C. 688 ; Johnson v. Holdsworth, 4 D. P. C 
 63 ; Herbert v. Piggott, 2 C. & M 384. 
 
 (</) Rawstorne v. Gandell, 15 M. & W. 304 ; 15 L. J. 291, Ex. 
 
 {€) Ibid.
 
 ACTIONS ON CONTRACT. i-.i 
 
 conflicting interests. In truth, the application is neither 
 more nor less than a bill in equity to discover whether 
 [A.] is or is not still interested in the concern." (/) 
 
 " We can not interfere to prevent the defendants from 
 pleading the release, unless a clear case of fraud between 
 them and the releasors, to the prejudice of their co-plain- 
 tiffs be made out, or unless it be shown that the release 
 was executed by persons who were suing as mere trustees, 
 having no real interest in the subject-matter of the action. 
 But so long as a person has shares in such an under- 
 taking, he has an interest which, however small it be, is 
 sufficient to enable him to release an action in which he 
 is a plaintiff"; and the case is quite diff"erent from the 
 familiar one of assignor and assignee, in which the courts 
 for the first time interposed in this way. The plaintiff 
 [A.] holds fifty shares in this undertaking, and is, there- 
 fore entitled at law to release the claim of the company, 
 subject to his responsibility to his co-partners for so 
 doing. It is not shown upon these affidavits that he ever 
 agreed with the other plaintiffs not to release the action ; 
 it is shown, indeed, that ne agreed that the demand should 
 be enforced in his name, but that can not prevent him 
 from executing a release to the defendants if he 
 think fit. In the common case of two co-plaintiffs [no] 
 equally interested, if one of them thinks fit, out of 
 pure friendship to the defendant, to release the action, the 
 court can not on that account interfere to set the release 
 aside." {g) 
 
 But the court will set aside a release if it be manifestly 
 shown to be fraudulent, {li) The fraud, however, must 
 be clearly made out, for " where a co-plaintiff is by law 
 competent to give a release," and " the court are called 
 upon to set it aside upon the ground of fraud, the plain- 
 tiff" applying must make out a very strong case of fraud ; " 
 it) and the release certainly can not be got rid of unless 
 
 (/) Uawstorne v. Gariflcll, 15 M. & W. 307. per POLLOCK, C. B. 
 {g) Ibid. 307, 308. judgment of I'arkk, B. 
 (//) Junes V. Hcibeit, 7 'I'aunt. 421. 
 (1) Ibid.. 422, i)cr CUKIAM.
 
 132 PARTIFS TO ACTIONS. 
 
 fraud is nianifestl)' proved, {k) It would further seem 
 that the release may be got rid of where the co-plaintiff 
 whose name is used has no real interest in the action. (/) 
 Such a release, would, however, almost necessarily be 
 fraudulent. 
 
 Though the courts may, apparently, still set the plea 
 ot a release aside, the right course is now to state in an 
 equitable riplication the grounds on which the release can 
 be objected to. {jh) 
 
 Rule 14. — One and the same contract, whether 
 
 it be a simple contract or a contract by deed, can 
 
 not be so framed as to give the promisees 
 
 [hi] or covenantees the right to sue upon it both 
 
 jointly and separately. (;2) 
 
 A contract {0) can not be made so as to entitle several 
 persons under it both jointly and severally. They must 
 be entitled under it either jointly only, or severally only, 
 and must sue accordingl3^ {p) 
 
 In other words, a covenant " may be either a joint or 
 several covenant, and it will depend upon the context 
 whether it is to be taken as joint or several, but it can not 
 be both." {g) For, " it is fully established . . . that one 
 
 {k) Philips V. Claggett, ii M. & W. 84 ; 12 L. J. 275, Ex. 
 
 (/) Ibid. ; Rawstorne v. Gandell, 15 M. & W. 304 ; 15 L. J. 291, Ex. 
 
 (w) De Pothonierv. De Mattos, E. B. & E. 461 ; 27 L. J. 260, Q. B. See 
 further, as to nominal and real plaintiffs, ante. 
 
 The cases in which an action on a contract may be brought, either by a prin- 
 cipal or agent, constitute, in a sense, an exception to the rule that all tlie pf'rsons 
 must sue with whom a contract is made. See Chapter V. 
 
 («) Bullen, Pleadings, 3rd ed. 471. Slingsby'.s Case, 5 Coke, 18^ ; Brad- 
 burn V. Botfield, 14 M. & W. 559 ; Keighiley v. Watson, 3 Exch. 716. 
 723. 
 
 (o) The cases refer almost wholly to covenants, and, therefore, in consider- 
 ing this rule reference is made to covenants only. But the rule seems to apply to- 
 aH contracts in writing. Compare Pugh v. Stnngfield, 3 C. B., N. S., 2 ; 27 L. 
 J. 34 C. P. ; 4 C. B., N. S., 364; 27 L. J. 225, C. P. ; Owston v. Ogle, 13 East. 
 538. Broom, Parties. 2nd ed., ss. 20, 21 ; Bullen, Pleadings, 3rd ed., 471. 
 
 (/) Bullen, Pleadings, 3rd ed., 471. 
 
 (q) Keightley v. Watson, 3 Exch. 726, judgment of Rolfk, B.
 
 ACTIONS ON CONTRACT. 133 
 
 and the same covenant can not be made both joint and 
 several as regards the covenantees." (r) 
 
 One and the same covenant with A. and B. must 
 either be a covenant with both of them jointly : i. e., a 
 covenant with A. and B. collectively or a covenant with 
 each of them separately ; i. e., a covenant with A. sepa- 
 rately, and with B. separately. In the first case, A. and 
 B. must join in suing for a breach of the covenant. In 
 the second case, A. must sue separately, and B. sepa- 
 ratel}'. A several or separate covenant, in fact, with two 
 or more persons is only two or more separate covenants 
 expressed in a short form. 
 
 All the rule lays down is, that what is in law one cove- 
 nant can not be, as regards the covenantees, at once joint 
 and several. It may well be that what would 
 appear to an ordinary reader but one covenant, is [112] 
 in fact two covenants ; e. g., first, a joint covenant 
 with A. and B., and next a separate covenant with A. and 
 B., separately. 
 
 The rule as to covenantees may be illustrated by a 
 comparison with the rule as to covenantors. 
 
 Covenantors may make themselves by the same cove- 
 nant jointly as well as severally liable, but they can not 
 by the same covenant give the covenatees joint as well as 
 several rights of action, {s) 
 
 Thus X. and Y. may covenant with A., so as to enable 
 A. on the same covenant to sue either X. and Y. jointly, 
 or X. and Y. separately. Bui X. can not covenant with 
 A. and B. so as to enable them to bring on the same 
 covenant, at choice, either a joint action in the names 
 of A. and B., or separate actions in the name of A. or 
 of B. 
 
 The question which arises in most of the cases illus- 
 
 (r) Bradburn v. Hotfield, 14 M. & W. 573, judgment of Pakjck, B. 
 
 (j) Lush, Practice, 3rd ed.. 222. Bradburn v. IJolfieM, 14 M. & W. 573, per 
 Parke, B. It is " fully established, I conceive, by [tliej cases," says Parkk, B 
 ' that one and the same covenant can not be made both joint and several witl; 
 the covenantees. It may be fit," he adds, " to observe that a part of Mr. Pres- 
 ton's ex])lanation, that by exjiress words a covenant may be joint and several 
 with the covenantors or covenantees, notwitlistanding the interests are several, 
 is inaccurately expr«»s«ed. It is true only of the covenantors."
 
 134 PARTIF.S TO ACTIONS. 
 
 trating this rule is not whether a covenant can be treated 
 as at once joint and several, but whether a given cove- 
 nant is to be considered as a joint covenant or a several 
 covenant. 
 
 This question is one of " interpretation." In inter- 
 preting a covenant, regard must be had partly to the 
 legal interests of the covenantees, partly to the language 
 employed. The general principles of interpretation, or 
 of the construction to be put upon a contract have thus 
 been summed up : 
 
 " The construction of the contract .... depends 
 primarily on the language used, but is a question of in- 
 tention to be determined by considering, not only the 
 language, but also the interests and relations of the 
 parties. A contract will be construed to be joint 
 [113] or several according to the interests of the parties, 
 if the words are capable of that construction, or 
 even not Inconsistent with it. If the words are ambiguous 
 it will be joint, if the interests are joint, and it will be 
 several if the interest be several. On the other hand, if 
 the words are unmistakeably joint, then, although the in- 
 terest be several, all the parties must be joined in the 
 action ; if the words are unmistakeably several, the action 
 must be several, though the interest be joint." (/) The 
 interpretation, therefore, of covenants or other contracts 
 is governed by the following rules : 
 
 istly. Where the words of a covenant are unmistake- 
 ably joint or unmistakeably several; i. e., where no 
 ambiguity is possible, the covenant will be taken to be 
 joint or several in each case, whatever be the interest of 
 the parties ; i. e., all that will be looked to will be the 
 language of the covenant ; it will be merely a question of 
 construction, {ti) 
 
 2ndly. Whenever the words are ambiguous — i. e 
 capable of two constructions — regard will be had to the 
 legal interests of the covenantees. Where the interests 
 
 (/) Bullen, Pleadings, 3r(l ed., 471, 472 ; Sorsbie v. Park, 12 M. & W. 154; 
 Bradburn v. Rolfield, 14 M.& W. 559. 
 
 (u) Kelghlley v. Watson, 3 Exch. 721, judgment of PoLLOCK, C. B., and 
 Ibid., 723, judgment of I'ARKK, B.
 
 ACTIONS ON CONTRACT. 135 
 
 are several, the covenant will be held to be several ; where 
 joint, it will be held to be joint. 
 
 For, " it is impossible to say that the parties may not, 
 if they please, use joint words so as to express a joint 
 covenant, and thereby to exclude a several covenant, and 
 that because a covenant may relate to several interests, 
 it is therefore necessarily not to be construed as a joint 
 covenant. If there be words capable of two constructions, 
 we must look to the interest of the parties which they in- 
 tended to express." {z) 
 
 " The same covenant can not be treated as joint or sev- 
 eral at the option of the covenantee. If a covenant be so 
 constructed as to be ambiguous, — that is, so as to 
 serve either the one view or the other — then it will [114] 
 be joint if the interest be joint ; it will be several if 
 the interest be several. On the other hand, if it be in its 
 terms unmistakeably joint, then although the interest be 
 several, all the parties must be joined in the action. So 
 if the covenant be made clearly several, the action must 
 be several, although the interest be joint." (a) 
 
 What is a joint and what a several interest? The best 
 answer (d) appears to be, that the interest of parties to a 
 contract is joint where a breach of it to one is necessarily 
 a breach of it to all ; several, where a breach of it to one 
 is not necessarily a breach of it to all. 
 
 If X. covenant with A. and B. to pay a certain sum ot 
 money to B., the interest is joint, for the act to be done 
 is one act, and the omission to pay the money to B. is a 
 breach of contract to both the covenantees, (c) So where 
 there is a covenant with two persons to pay them one 
 annuity, the interest is joint, even though half the annuity 
 is to be received by each. It would probably be other- 
 wise if the covenant were to pay a separate annuity to 
 each in which case the interest would be several, {d) 
 
 (z) Ibid., 723, per Parke. 15. 
 
 (a\ Kcijililley v. Watson, 3 Exch. 721, per Pollock, C. 15., conf. Lane y. 
 DrinVwattr, I C. M. & R.612. 
 
 (i>"\ See for this answer, Lush., Practice, 3rd cd., 22. 
 (<•' Anderson v. Martindale, I East, 497. 
 (0 , Lane v. Di ink «-aicr, 2 D. P. C. 233.
 
 136 PARTIES TO ACTIONS. 
 
 Where, on the other hand, it was agreed b) a ship's 
 husband with the owners of the ship, that alter her re- 
 turn a lull account should be made of the said ship and 
 her concerns, and the net profits be divided, after deduct- 
 ing all charges, it seems to have been held that each ot 
 the owners had a separate interest in the making out ot 
 the account bv which his share was to be ascertained, 
 before an actual division was made of the profits of the 
 
 adventure, {e) 
 [115] If. again, a person demises Blackacre to A. and 
 
 Whiteacre to B., and covenants with them and each 
 of them that he is lawful owner of the said lands, their 
 interests are separate. (/) 
 
 Rule 15. — The right to bring an action on con- 
 tract can not be transferred or assigned, (^g) 
 
 (e) Owston v. Oi^le, 13 East, 53S, 5^0. Some writers of authority maintain 
 that a covenant can be at once joint and several, not only as regards the cove- 
 nantors, but also as regards the covenantees, ^n this view the question, whether 
 a covenant is joint or several, or joint and several, as regards the covenantees, 
 is wholly a question of construction /. e., of the words of the covenant. This 
 view of the law is thus stated, — 
 
 " If there be two or more covenantors, or two or more covenantees, the 
 covenant may either be joint or several, or both joint and several. Thus, if 
 there be two covenantors, they may bind themselves jointly, or may bind them- 
 selves severally, or may bind themselves both jointly and severally. And if 
 there be two or more covenantees, the covenant may be entered into with them 
 lointly or with them severally, or in both ways. When, however, a covenant 
 is entered into with two or more, and with each of them, it will not be consid- 
 ered joint and several unless distinctly expressed as such by the deed itself ; 
 but will be deemed joint or several according as the interest of the covenantees 
 in the subject-matter is joint or several." Davidson's Precedents, 3rd ed., 
 109. 
 
 The view taken in the text is that of various writers of reputation, e.g., 
 Bullen, Pleadings, 3rd ed., 471, and Lush, Practice, 3rd ed., 22. The apparent 
 difference of view is possibly merely a difference of language. The covenant 
 which one writer would call a joint and several covenant, would, perhaps, be 
 termed by another two separate covenants. It is admitted on both sides that 
 covenants are, as a rule, either joint or several, and not as regards the covenan- 
 tees both joint and several. 
 
 {/) Anderson v. Martindale, i East, 5or. 
 
 ( g^) This is merely an applicati(jn to actions ex contractu of the genera) 
 principle, that the right to bring an action can not be transferred. See Rule 6
 
 ACTIONS ON CONTRACT. 137 
 
 Though the interest in a contract is constantly trans- 
 ferred from one person to another, the right to sue upon 
 a contract can not be transferred, so as to enable the 
 transferee or assignee of the interest in the contract to 
 sue for a breach thereof in his own name. He must sue 
 in the name of the assignor ; or, if he be dead, in the 
 name of his executor or administrator, [h) 
 
 A debt is due from X. to A. A. can not transfer 
 the debt to B. so as to enable B. to sue for it in B.'s 1116] 
 name, {i) {k) 
 
 It is at once a result and illustration of this rule, that 
 no arrangement between the parties to a contract can 
 give any one a right to sue for its breach who would not 
 independently of the arrangement have any legal right to 
 sue. (/) It is, however, possible for the several parties 
 to a contract to agree among themselves that actions for 
 breach of the contract shall be brought in the name of 
 one of them only. With reference to an agreement of 
 this kind it has been laid down as follows : — " We think 
 that the members of a firm can not by agreement give an 
 authority to any one of them to bring an action in his 
 name against persons not members of the firm. But 
 where several parties create by agreement penalties to be 
 paid by one of them to the others, we see no objection to 
 their empowering one to sue for the others. Such an 
 agreement is in effect an undertaking not to object on 
 account of all who ought otherwise to have been joined in 
 the action not being joined." (;;/) 
 
 Where two persons liave a joint right of action, e. g., 
 where A. and B. have a right of action against X., one 
 can not assign to the other his share in the right of action 
 so as to enable such assignee to sue alone. Where X. 
 covenanted with A. and B., it was held tiiat B. cou'd not, 
 
 (//) Chit., I'learling, 7th ed., 17. 
 
 (/') Jones V. Carter, 15 L. J. q6, Q. B. ; 3 Q. H. 134. See furllier. ante, as to 
 the effect of assij^nment on tlie right of set-ofT. 
 
 {k) Hut see as to assignment of a debt by agreement between ihe assignor, 
 dclitor, and assignee, post. 
 
 (I) Ilybart v Parker. 4 C. B.. N. S.. 209 ; 27 L. J. I20, C. P. 
 
 (w) Rad-nhlrst v. Bates, 3 Bing. 470, per CURIAM.
 
 138 PARTIES TO ACTIONS. 
 
 by resigning his rights to A., enable A. to sue alone for a 
 breach of covenant. («) 
 
 " The liability to be sued jointly by the two covenan- 
 tees . . . might perhaps be sufficient to sustain the 
 present action if it were not for the rule . . . which 
 prohibits the assignment of the right to enforce 
 [117J such a liability, inasmuch as the indenture of dis- 
 claimer sufficiently shows the intention on the part 
 of [B.] and the plaintiff, that the plaintiff shall have the right 
 to sue, which before the execution of that deed might have 
 been exercised by the plaintiff and [B]. But there is no 
 doubt that such a right is by law not assignable. The 
 defendant, indeed, does in terms covenant with the plain- 
 tiff and [B], their executors, administrators, and assigns, 
 but the rule which prohibits the assignment of a right to 
 sue on a covenant is not one which can be dispensed with 
 by the agreement of the parties, and it applies to covenants 
 expressed to be with assigns as well as to others." {0) 
 
 Exception i. — Contracts made assignable by statute. (/) 
 
 In the case of some kind of contracts an assignee is 
 empowered by statute to sue upon them in his own name. 
 Such are promissory notes, {q) bills of lading, (r) bail 
 bonds, {s) replevin bonds, (/) administration bonds, {u) life 
 and marine policies of insurance, {x) choses in action 
 belonging to companies within the Companies Act, 
 1862. {y} 
 
 («) Wetherell v. Langston, i Exch. 634. 
 
 {0) Wetherell v. Langston, i Exch. 644, 645, per Curiam ; but conf. Lin- 
 wood V. Squire, 5 Ex. 235. 
 
 (/) By "assignable" is, of course, meant, in treating of the exceptions to 
 the general rule, assignable so as to enable the assignee to sue in his own 
 name. 
 
 (q) 4 Anne, c. 9, s. i. 
 
 (r) i3 & 19 Vict. c. rii, s I. 
 
 {s) 4 Anne, c. 16, s. 20. 
 
 {t) II Geo. II., c. 19, s. 23. But assignment of these bonds is not now ne- 
 cessary. See 19 & 20 Vict. c. 108, s. 63-66 and 70. 
 
 («) 20 & 21 Vict. c. 77, s. 8r, compared with 21 & 22 Vict. c. 95, 3. 15. See 
 Sandrey v. Michell, 3 B. & .S. 405 ; 32 L. J. 100, Q. B. 
 
 (x) 30 & 3] Vict. c. 144 ; 31 & 32 Vict. c. 86. 
 
 (y) 25 & 26 Vict. c. 89, s. 157.
 
 ACTIONS ON CONTRACT. 139 
 
 Exception 2.— Contracts or choses in action as5igiiable by 
 custom. 
 
 Such are bills of exchange, checks, &c. 
 
 Exception 3. — Assignment of a debt by agreement of all the 
 parties. 
 
 "The assignment of a debt may be effected in [118] 
 law so as to give a right of action to the assignee 
 by means of a binding agreement between the assignor, 
 the assignee, and the debtor, to the effect that the debt 
 shall be discharged as against the assignor or original 
 creditor, and a new liability created for the debt in favor 
 of the assignee." {a) 
 
 Suppose X. owes M. £100, and M. owes A. ;:^ioo, and 
 the three meet, and it is agreed between them that X. 
 shall pay A. the iJ"ioo. M's debt is extinguished, and A. 
 may recover the sum against X. {b) 
 
 In a sense, such a transaction involves the assignment 
 o.' a chose in action, since the claim of M. against X. is 
 transferred to A. But there is in reality no exception 
 to the general rule ; for A. sues X., not on the original 
 contract between M. and X., but on a new contract 
 between A. and X., the consideration for which is the 
 extinction of A.'s claim against M., i. e., of M's debt to A. 
 There must, therefore, be an agreement between all the 
 three parties, {c) The intermediate debt, i. e., the debt 
 due from M., the assignor, to A., the so-called assignee, 
 must be extinguished, {d) For though where by an agree- 
 ment between the three parties, A. undertakes to look 
 to X., and not to M., his original debtor, A. may main- 
 tain an action against X. on this agreement, yet, in order- 
 to give A. tne right to such an action, there must be an 
 extinguishment of the intermediate dcl)t, i. e., the debt 
 due from M. to A. {c) There must also, at *nc time of the 
 
 (a) Leake, Contracts, 607, 608. 
 {(>) Tatlock V. Harris, 3 T, R. 180, per Hui.l.KR, J. 
 (f) Price V. Easton, 4 15. & Ad. 433. 
 
 (</) Cuxon V. Ciiadley, 3 B. & C. 591 ; Cochrane v. Green, 9 C. H., N. S., 
 448 ; 30 L. J. 97. C. I'. 
 
 it) Wharlon v. Walker, 4 H. & C 165. judfjincnt of Hayi.f.Y, J
 
 140 PARTIES TO ACTIONS. 
 
 assif^nmcnt, be a debt actually due to M., the assignor, 
 from X., the ultimate debtor. (/) The whole transaction 
 IS in effect the making of a new contract, and the right 
 
 of the assignee depends in reality, not upon the 
 [119] assignment of the assignor's claim, but upon a new 
 
 agreement entered into by all the three persons 
 concerned in the transaction, {g) 
 
 Exception 4. — Covenants annexed to, or running with, es- 
 tates in land. (//) 
 
 Covenants of a certain class which specially concern 
 or touch the land may be annexed to estates in land, so 
 that the benefit or the burden of the covenants passes to 
 an assignee of the estate. These covenants are then said 
 to run with the land, {k) 
 
 The peculiarity of covenants which run with the land 
 is, that the benefit of them, or the obligation to perform 
 them, passes from the person with or by whom they were 
 made to the person interested in the estate to which they 
 refer. The meaning of this is seen by comparing cove- 
 nants which run with the land with covenants which do 
 not pass or run with the things to which they refer. 
 
 Suppose X. sells goods to A., and covenants for a 
 good title, and A. sells them again to B., A., or his repre- 
 sentatives, can sue X., or his representatives, for a breach 
 of the covenant ; but B. can not sue X., or his represen 
 tatives, for such a breach. B.'s only remedy (if any) 
 against X. is an action in A.'s name. Suppose, again, 
 that A. lets goods to X., and that X. covenants for him- 
 self and his assigns to return the goods at the end of the 
 term in as good condition as they were let to him, and 
 that X. then sells all his interest in the goods to Y., A 
 
 (/) Fairlie v. Denton, 8 B. & C. 395. 
 
 (g) Wilson V. Coupland, 5 B. & Aid. 228 ; Hudson v. Bilton, 6 E. & B. 565; 
 26 L. J. 27, Q. B. Leake, Contracts, 609. 
 
 (A) See especially Leake, Contracts, 615-623; Smith, Landlord and Tenant, 
 282 ; and Spencer's Case, 1 Smith. L. C, 6th ed., 45. 
 
 {k) Leake, Contracts, 615. Contracts not under seal never run with the 
 land. Bickford v. Parson, 5 C. B. 918 ; 17 C. J. 192, L. P. ; Bryd<jes v. Lewis, 
 1 Q. B 603 ; Sianden v. Chrismas, 10 Q. B. 135.
 
 ACTIONS ON CONTRACT. 141 
 
 can, if the goods are not returned in a good condition, 
 sue X. (or his representatives) for a breach of cove- 
 nant, but he can not sue Y., or his representatives, 
 for such breach, (in) In these and the like instances [120] 
 the contract is looked upon as purely personal. It 
 benefits the person with whom it is made, or his repre- 
 sentatives, and binds the contractor, or his representatives ; 
 but it neither benefits nor binds the person to whom the 
 property to which the covenant relates passes. 
 
 But, suppose that X. sells land to A., and covenants 
 for title, and that A. sells the land again to B., B. will 
 have a right of action against X., or his representatives, 
 for a breach of X.'s covenant. Suppose, again, that A. 
 leases land to X., and that X. covenants to repair, and 
 afterwards assigns his term to Y., who breaks the cove- 
 nant, A. has a right of action against Y. {n) These cove- 
 nants, therefore, run with the land. 
 
 Covenants affecting land, when made between persons 
 who do not stand in the relation of lessor and lessee, are 
 governed wholly by the common law, and are covenants 
 either by the owner of land, i. e., imposing a burden upon 
 him, or covenants with the owner of land, i. e., conferring 
 a benefit upon him. 
 
 Covenants by owners of land do not run with the land ; 
 i. e., the burden of such covenants does not pass with the 
 estate to the assignee. {0) If (that is to say), X., on pur- 
 chasing an estate, were to covenant as owner with the 
 vendor, e. g., that the land should never be built upon, 
 such a covenant would not bind the successive owners of 
 the estate, i. e., would not run with the land. 
 
 (w) Spencer's Case, i Smith, L. C.,6th ed., 47 ; Spluit v. Bowles, 10 Ea-t, 
 279 ; Gorton v. Gregory, 3 15. & S. go ; 31 L. J. 302, Q. B. 
 
 («) Thoufjli he still retains a right of action against X. for a breach of hi-; 
 covenants. Wadliam v. Marlow, 8 East, 314, n. ; Walker's Case, 2 Coke, 21 ; 
 I Wms. Saund. 240, 241 ; 2 Ibid, 302, note 5. 
 
 (0) I Smith, L. C, 6th ed., 65-77 ; Keppel v. Hailey, 2 M. & K. 517. In re 
 Drew's Estate, L. R. 2, E.\. 206 ; 35 L. J. 845, Ch. ; Riciiard.s v. Harper, L. R. 
 I, I^x. I99, 205. 'Ihough the weight of autliority is in favor of the view of the 
 law expKVised in the text. Lord .Sr. Lkonards has expressed a decided opinion 
 that covenants by the owners of land may run with the land. The question 
 whether such covenants may not run with the land must, therefore, lie cnn- 
 Ridered doubtful. See Sugden, Vendors and Puriha.sers, 14th ed.. 453, 5S5, 593
 
 [42 PARTIHS TO ACTIONS. 
 
 [i2i] Covenants with owners, ?'.<?., for the benefit oi 
 
 o\Aners of land (provided, of course, that they are 
 of a nature to run with the land), pass to each successive 
 assignee of the land, i. e., from owner to owner. Thus, 
 suppose an}' one covenant (/) with the owner of land to 
 supply pure water for cattle on the land, such a covenant 
 will run with the land, e. g., if owner A. sell his land to 
 B., B. has a right to the benefit of the covenant, and may 
 sue for a breach of it. 
 
 Covenants which affect land may be made between 
 persons who stand in the relation of lessor and lessee. 
 
 The rules as to such covenants depend partly on 
 the common law, and partly on the statute 32 Hen. VIII. 
 c. 34. 
 
 At common law, lessor and lessee were each bound by 
 their covenants to each other, and it the covenants 
 " touched the land," — e. g., were covenants for title, 
 covenants to repair, and so forth, — the assignee of the 
 lessee could sue the lessor, and could, on the other hand, 
 be sued by the lessor. If, for example, A. leased land 
 to B., covenanting for renewal, and B. assigned the 
 lease to C, C. could sue A. for any breach of covenant, 
 and, on the other hand, if B. had covenanted to repair. 
 A. could sue C. for a breach of such covenant on C.'s 
 part. 
 
 But at common law, covenants, though touching the 
 land, neither bound nor benefitted the assignee of the 
 lessor. Suppose A. leased to B., and covenanted fo. 
 renewal, iq) wliilst B. covenanted to repair, and A. then 
 assigned his estate in the land to C, B. could not sue C. 
 for the breach of the one covenant, nor C. sue B. for the 
 breach of the other. 
 
 The original parties to the lease, and their representa- 
 tives, might, it is true, sue one another, i. e., B. might 
 sue A., or A.'s personal representatives, and A. 
 [122] might sue B., or B.'s personal representatives. 
 The result was, that the person who had the right 
 
 (/) Sharp V. Waterhouse, 7 E. &. B. 816 ; 27 L. J. 70, Q. B. 
 
 (f) See Roe d. Bamford v. Hayley, 12 East, 46S, per Ellenborough, C. J
 
 ACTIONS ON CONTRACT. 143 
 
 to sue, or the liability to be sued, was not the person 
 interested in the land. {/) 
 
 The statute 32 Hen. VIII. c. 34 (in order to remedy 
 this defect of the common law), gave the assignee of the 
 reversion the same remedy against the lessee and his 
 assignee {/) as the original landlord would have had 
 against the original tenant, and the original tenant and 
 his assignees the same remedy against the reversioner 
 and his assignees as such tenant would have had against 
 the original landlord, {g) Thus, A. leases to B., and then 
 assigns his reversion to C. ; C. can under the statute be 
 sued by, and sue B. on all covenants which touch the 
 land, and further, if B. assigns to D., C. can be sued by, 
 and can sue, D. 
 
 An assignee, in order to obtain the benefit, or 
 incur the burdens, of covenants which run with the [123] 
 land, must take the same estate as that to which 
 the covenants are annexed. Thus, though the covenants 
 pass to an assignee of a lessee, they do not pass to the 
 under-lessee of the lessee, {h) If A. leases to B. for twenty 
 
 {e) Smith, Landlord and Tenant, 2S3. 
 
 {/) The term "assignee" has, under 32 Hen. VIII. 3, 34, received a very 
 extended interpretation. 
 
 It includes, fc instance, a grantee, or devisee, or heir; or if the reversion 
 is a term of years, the executor or administrator of the reversioner (Derisley 
 V. Custance, 4 T. R. 75. Leake, Contracts, 625) ; the executor or administratoi 
 of an assignee (Spencer's Case, i Smith, L. C, 6th ed., 49) ; the assignee of an 
 assignee, or the assignee of the execu^tor or administrator of an assignee (Spen- 
 cer's Case, I Smith, L. C, 6th ed., 49) ; the trustee in bankruptcy; the re- 
 mainderman under a lease made under a power (Isherwood v. Oldknow, 3 M 
 & S. 382) ; the assignee of part of the n-version. e. ^., for years (Coke, r Inst. 
 215 a. ; Wright v. Bnrroughes, 3 C. B. 685 (Ex. Ch.) ) ; the assignee of the 
 reversion in part of the premises as far as the covenants affect his pait of ilic 
 land (Twynam v. Pickard, 2 B. & Aid. 105); the assignee of the term in part 
 of the demised premises, — i. e., the assignee of part of the premises from tlie 
 lessee (I'almer v. Edwards, i Doug. 183. .See Nerval v. Pa-icoe, 34 L. J. 82, 
 Ch. See especially, Twynam v. Pickard, 2 B. & Aid. no, in, as to the 
 meaning of assignee being the same in both sections of the Act) ; a mortgagee 
 (Williams v. Bosanquet, I B. & B. 238); tlie grantee of the reversion in copy- 
 hold lands (Glover v. Cope, 3 Lev. 326) ; and generally persons who, though 
 they be not sirictly assignees of a reversion, virtually stand in that position 
 (.Martyn v. Williams, i II. & N. 817 ; 26 L. J. 117, Ex.). 
 
 (g) Smith, Landlord and Tenant, 285. 
 
 (h) See 8 v^ 9 Vict. c. 106, s. 9, by which, when the reversion on a lease is 
 gone, the nrxl estate is deemed a reversion for the purpose of preserving the
 
 44 PARTIES TO ACTIONS. 
 
 years, and B. assigns his lease to C, C. is bound by B/& 
 covenants (if tliey touch the huid), with A. But suppose 
 B. underlets to C, — c. j^., for nineteen years, — C. is not 
 bound by B.'s covenants with A., (/) nor can C. take the 
 benefit of covenants by A. with B. 
 
 Covenants which run with the land must have the 
 following characteristics : 
 
 1st. Such covenants must be made with a covenantee 
 who has an interest in the land to Avhich they refer, (k) 
 
 Suppose that A. is owner of Blackacre, and X. cove- 
 nants with A. to keep certain buildings on Blackacre 
 in repair, such a covenant runs with the land ; /. e., passes 
 to the successive assignees of Blackacre, — e. g., persons 
 who purchase it. Suppose, on the other hand, A. is not 
 owner of Blackacre, but that it belongs to B., and X. 
 covenants with A. as in the former case. Such a cove- 
 nant does not run with the land. Neither B. nor the 
 assignees of B. can sue upon it, and an action for its breach 
 must be brought, if at all, by A., or the representatives of 
 A. 
 
 A mortgagor and a mortagee joined in a lease of the 
 mortgaged premises, and the covenants by the lessee 
 were made with the mortgagor only. It was held that the 
 assignee of the mortgagee, who, it must be remembered, 
 had the legal (/) interest in the land, could not sue 
 [124] upon them ; (;;/) but that the action must be brought 
 by the mortgagor, (it) or his representatives. For 
 rhe same reason, where a lease was made by a mortgagor, 
 in which a previous mortgage was recited, the covenants 
 jvere held not to be assignable ; that is, being covenants 
 with the mortgagor, who had no legal interest in the 
 land, they were not covenants annexed to the land, 01 
 running with it. {0) 
 
 incidents and obli;;ations attaching to such reversion. As to the lial;ility of 
 essor and lessee, and the effect of assignment, see Chapter XI. 
 
 {{) Holford V. Hatch, r Doug. 183 : Earl of Derby v. Taylor, i East, 502. 
 
 {k) Spencer's Case, l .Smith, L. C, 6th ed., 50. 
 
 (/) See Rule 4. 
 
 {m) Webb v. Russell, 3 T. R. 393. 
 
 («) Stokes V. Russell, 3 T. R. 678. 
 
 (o) Pargeter v. Harris, 7 Q. H. 70*.
 
 ACTIONS UN CONTRACT. 145 
 
 Thousfh the covenantee must have an interest in the 
 land, the covenantor need not have any, (/) Thus, a 
 covenant by X. with A., the owner of Blackacre, to keep 
 m repair certain buildings thereon, will run with the land, 
 that is, pass to the successive owners of it, even though 
 X. has no interest in the land whatever. 
 
 2ndly. Such covenants must concern or " touch " the 
 land. 
 
 It IS not every covenant with the owner of land which 
 runs with the land. Suppose, for example, A. is the 
 owner of land which he has bought from X. and X. has 
 entered into two covenants with him ; the one for title, 
 and the other to repay certain money beyond the pur- 
 chase money for the land, advanced him by A. The first 
 covenant affects or touches the land, and therefore, if A. 
 sells the land to B., the covenant runs with the land ; i. e., 
 B., the assignee, acquires a right to sue X. for its breach. 
 
 The second covenant is one only affecting A. personally. 
 It m no way touches or concerns A.'s estate in the land. It 
 is what is called a covenant in gross, or, as it is sometimes 
 termed, a collateral covenant. It therefore does not run 
 with the land, nor can B. sue X. for its breach, {g) 
 
 A covenant which touches the land, as con- [125] 
 trasted with a collateral covenant, is one which 
 affects the nature, quality, or value of the land, or rather 
 of the estate in the land, or the mode of enjoying it. (r) 
 
 " In order to bind the assignee, the covenant must 
 either affect the land during the term, such as th se 
 which regard the mode of occupation, or it must be such 
 as per se, and not merely from collateral circumstances, 
 affects the value of the land at the end of the term. Cove- 
 nants to restrain the exercise of particular trades in houses 
 fall within the first class; they affect the mode in which 
 the property is to be enjoyed during the term. The 
 
 (/>) Spencer's Case, i Smith, L. C, 6lh ed., 63. 
 
 iq) The same principle applies where the relation of lessor and lessee exists, 
 and it has been long held that the statute (32 Hen. VIII. c. 34) does not apply 
 to costs which do not touch or concern the land. Smith's Landlord and 
 Tenant, 286, and Spencer's Case, Smith, L. C, 6th ed., 51. 
 
 (r) Mayor of Conpleton v. I'attison, 10 East, 135-137. 
 10
 
 146 PARTIES TO ACTIONS. 
 
 case of Bally v. Wells {s) may rank under the second 
 class, for if the lessee or a stranger were in the actual 
 occupation of the tithes during the term, the evidence of 
 the lessor's right to them would be continued ; and there- 
 fore the estate of the reversioner would be better at the 
 end of the term." (/") 
 
 Though the general distinction between covenants 
 which touch the land and covenants which do not touch 
 the land, or collateral covenants, is clearl) marked, it is 
 often a question under which head a given covenant falls. 
 Thus in a case already referred to, {ti) a covenant by a 
 lessee of tithes not to let any of the farmers of the parish 
 have any part of the tithes, was held to run with the 
 tithes, because it affected the estate. A C(.)venant, on the 
 other hand, by the lessee of land, on which he was to erect 
 a mill, not to hire persons to work at the mill who be- 
 longed to another parish, was held not to touch the thing 
 
 demised, as not affecting the land itself or the mode 
 [126] of occupying it. (w) A covenant to leave land at 
 
 the end of the term stocked with game has been 
 held to touch the land, {x) since " no covenant more closely 
 touches or concerns the land than a covenant to keep on 
 the land a certain quantity of game. In order to keep up 
 the game, some one must be always on the land, and the 
 observance of the covenant can be a benefit to no one but 
 the owner of the land ; it is more intimately connected with 
 the land than a covenant to reside, which has been held 
 to run with the land." {y) " It is a covenant which affects 
 the value of an estate, and is valuable to the owner on 
 that ground. It affects the enjoyment of the estate ; it 
 relates to a matter to be done on the land, and touches the 
 
 {s) 3 Wils. 25. 
 
 (/) Mayor of Congleton v. Pattison, 10 East, 137, 138, judgment of Bayley, 
 J. The expressions here used apply directly to cases where the relation of 
 lessor and lessee exists. But they apply equally in principle to covenants with 
 the owner of land by a person not a lessee. This remark ai)plies to o'.hei 
 quotations. 
 
 («) Bally V. Wells, 3 Wils. 25. 
 
 (w) Mayor of Congleton v. Pattison, 10 East, 130. 
 
 {x) Hooper v. Clark, L. R. 2, Q. B. 200 ; 36 L. J. 79, Q. fi. 
 
 {y) Ibid., 203, judgment of Blackburn. J.
 
 ACTIONS ON CONTRACT. 147 
 
 thing demised ; " {£) and is on these grounds distinguished 
 from a covenant to re-deliver sheep or cattle which have 
 been hired, in a good condition, which being a cove- 
 nant relating to goods only, does not run with the 
 land, {a) 
 
 A proviso in a lease for re-entry in case the lessee, or 
 any tenant, or occupier of the premises demised, should 
 be lawfully convicted of any offense against the game 
 laws, has been held, though with some hesitation, not to 
 touch the land {b) on the ground that it seems " to be 
 purely collateral." " The question," it was said in this 
 case, " appears to be this — Does the condition touch the 
 thing demised ? If it does not, it matters nothing that 
 it touches the personal character of the occupier. Now 
 here the act done had no reference whatever to the land 
 demised, but only to the conduct of the person who hap- 
 pened to be in occupation of the premises. But . . . 
 the mere circumstance of the offense being committed by 
 the person in* occupation does not refer enough to the 
 land itself to enable the assignee of the landlord to 
 enforce a forfeiture for the breach of this condition. [127] 
 No case has gone to such a length, and the reason 
 of the thing seems to be adverse to the plaintiff's conten- 
 tion." {c) 
 
 The agreement to keep the land stocked with game {d') 
 touched the land because it affected the enjoyment of the 
 estate ; the agreement for re-entry in case the occupier 
 was convicted of an offense against the game laws {e) was 
 held not to touch the land, because it did not affect the 
 enjoyment or value of the estate, but had simply reference 
 to the conduct of the lessee or occupier. (/) 
 
 (z) Il)id., 202, judgment of Cockbukn, C. J. 
 
 (a) Spencer's Case, I Smith, L. C, 6lli ed., 47. 
 
 {b) Stevens v. Copp, L. R. 4, Ex. 20. 
 
 (c) Stevens v. Copp, L. R. 4, Ex. 26, judgment of Clkashy, B. 
 
 \d) Hooper v. Clark, L. R. 2. Q. B. 200 ; 36 L. J. 79, Q. E. 
 
 (e) Stevens v. Copp, L. R. 4, Ex. 20. 
 
 (/") The following are example-; of covenants which touch tlic land, viz; — 
 Covenants to pay rent (.Smith, Landlord and Tenant, 2S7) ; to repair (Spencer's 
 Case, I .Smith, L. C, 6th ed , 45 ; Windsor's Case, 5 Coke, 24) ; for quiet en- 
 ioyment (Cnmplxll v. Lewis, 3 }}. & .Md. 2<)2) ; for cultivation of land in par
 
 148 PARTIES TO ACTIONS. 
 
 Covenants may run with, or be annexed to, different 
 estates in land. 
 
 The bcnclit, though not the burden, of such covenants 
 can bo annexed to the fee. {g) 
 
 The benefit and the burden of such covenants 
 [128] can be annexed both to the term and to the rever- 
 sion, and such covenants can also be annexed to 
 incorporeal hereditaments. Thus a covenant in a lease 
 of tithes was held to run with the lease of the tithes, and 
 bind the assignee. (//) So a covenant in a lease of tolls 
 will run with the tolls demised by the lease ; (/) and can 
 be annexed to the grant of a license, e. g., to dig for min- 
 erals, ik) 
 
 But a covenant can not be annexed to an equitable 
 estate, (/) or to a mere rent issuing out of land, iin) 
 
 Exception 5. — Assignment by marriage, (ti) bankruptcy, {0) 
 and death. (/) 
 
 ticular manner (Cockson v. Cock, Cro. Jac. 125); for renewal (Roe d. Bamford 
 V. Hayley, 12 East, 464 ; Williams v. Earl, L. R. 3, Q. B. 739) ; not to carry on 
 particular trade (Hodgson v. Coppard, 30 L. J. 20, Ch.) ; to keep up sea-walls 
 (Morland v. Cook, L. R. 6 Eq. 652) ; to leave land stocked with game (Hooper 
 V. Clark, L. R. 2, Q. B. 200) ; to supply premises with water (Jourdaine v. Wil- 
 son, 4 B. & Aid. 266) ; to supply water for cattle on land (Sharp v. Walerhouse, 
 7 E. & B. 816; 27 L. J. 70, Q. B.). 
 
 The following are examples of covenants which do not touch the land, viz : 
 — Covenants as to mere utensils used on land (Williams v. Earl, L. R. 3, Q. B. 
 739 I 37 L. J. 231, Q. B.) for re-entry in case lessee is convicted of oftense 
 against game laws (Stevens v. Copp, L. R. 4, Ex. 20) ; not to employ laborers 
 out of other parishes (Mayor of Congleton v. Pattison, 10 East, 130). See 
 further as to distinction between covenants having reference to something 
 which is in existence at the time, and covenants which refer to something which 
 is not in existence ^Spencer's Case, i Smith, L. C, 6th ed., 46 ; Easterby v. 
 Sampson, 9 B. & C. 505 ; Wilson v. Hart, L. R. i, Ch. 463 ; 36 L. J. 569, Ch. 
 MinshuU v. Oakes, 2 H. & N. 793 ; 27 L. J. 194, Ex.). 
 
 ( g) See ante. ' 
 
 {h) Bally v. Wells, 3 Wils. 25. 
 
 (i) Earl of Egremont v. Keene, 2 Jones (Exch. Ireland), 307. 
 
 (i) Martyn v. Williams, I H. & N. 817; 26 L. J. 117, Ex.; Muskett v. 
 Hill, 5 B. N. C. 694, 708. 
 
 (/) Pargeter v. Harris, 7 Q. B. 708. 
 
 {m\ Milnes v. Branch, 5 M. & S. 411 ; and see Williams v. Hayward, I E. & 
 E. 1040 ; 28 L. T. 374, Q. B. ; Leake, Contracts, 623, 624. 
 
 («) Chapter VHI. 
 
 {p) Chapter IX. 
 
 (/) Chapter X.
 
 ACTIONS ON CONTRACT. 149 
 
 Rule 16. — The right of action on a contract 
 made with several persons jointly passes on the death 
 of each to the survivors, and on the death of the last 
 to his representatives.* 
 
 A contract is made with A., B., and C. The right to 
 sue upon the contract passes on the death of C, to A. and 
 B. ; on the subsequent death of B., to A. ; and on the 
 death of A. (provided the right to sue survives,) {q) to A.'s 
 executor or administrator. The representatives, e. g., of 
 C. can neither sue upon the contract themselves nor join 
 in suing with A. and B. 
 
 Exception. — Covenants with tenants in common. 
 
 If there is a joint demise by A. and B., who are ten- 
 ants in common, and a covenant therein with them, 
 e.g., to repair, an action for the breach of such a [129] 
 covenant must, on the death of B., be brought, not 
 by A., but by A. and M., the representatives of B. (r 
 
 This exception is only an apparent one, for A. and M 
 sue in the character, not of joint covenantees, but of joini 
 owners of the reversion. 
 
 (q) Ibid. 
 
 (r) Foley v. Addenbrooke, 7 Q. B. 197 ; Thompson v. Hakewill, 19 C. B. 
 N. S., 713 ; 35 L. J. 18, C. P. Leake, Contracts, 628. 
 
 I. Cochrane v. Gushing, 124 goyne v. Ohio Ins. Co., 5 Ohio St. 
 
 Mass. 219; State Treasurer v. 586; Henderson v. Talbert, 5 Sm. 
 
 Friott. 24 Vt. 136; Eich v. Scivers, & M. no: Bradford v. Curlee, 41 
 
 73 111. 194; County of Wapello v. Mass. 560; Simpson v. Young, 2 
 
 Bigham, 10 Iowa, 41; Fisher v. Humph. 515; Trimier v. Thomp- 
 
 Allen. 36 N.J. 203; Maples v. Gel- son, 40 S. C. 178; Halstead v. 
 
 der, I Nev, 237. But see Taylor v. Cockroft. 49 How. Pr. 342 ; Eldred 
 
 Taylor. 5 Humph, no; Dingman v. First Nat. Bank, 71 Ind. 543. 
 V. Amsink, 77 Pa, St. n7; Bur-
 
 J-JC PARTIES TO ACTIONS. 
 
 CHAPTER V 
 
 PRINCIPAL AND AGENT. 
 
 Rule 17. — A contract entered into with a princi- 
 I pal {a) through an agent is in law made with the 
 principal, and the principal, not the agent, is the 
 proper person to sue for the breach of it. (^by 
 
 A person can sue on any contract made on his behalf, 
 whether made by an agent authorized to act for him at 
 the time, {c) or made without his authority, or even with- 
 3ut his knowledge, but subsequently ratified by him- 
 self, {d) 
 
 {a) A principal is " a person who being competent to do any act for his own 
 benefit or on his own account, employs another person to do it." 
 
 An agent is " the person so employed." 
 
 Agency is " the relation created between the parties " 
 
 Authority is " the power delegated by the principal to the agent." 
 
 The principal is, under different circumstances, termed an " employer," 
 " master," &c., according to the nature of the agency. 
 
 The agent is termed the " employed," " servant," " factor," " broker," &c. ; 
 but whatever the nature of the agency, the above definitions apply to it (Story, 
 Agency, s. 3). 
 
 {b) Story, Agency, ss. 418, 419 ; Broom, Maxims, 784, 785, 4th ed. 
 
 (c) Watson v. Swann, 11 C. B., N. S., 756; 31 L. J. 210, C. P.; Story, 
 Agency, ss. 391, 413. 
 
 {d) Ancona v. Marks, 7 H. & N, 686 ; 31 L. J. 163, Ex. 
 
 I. Sutton V. Mansfield, 47 Conn. Bigelow, 43 Vt. 255 ; Sutton v. 
 
 389 ; Borroscale v. Bosworth, 99 Mansfield, 47 Conn. 389 ; Fry v. 
 
 Mass. 381; Fogg V. Sinclair, 5 Carter, 25 Ala. 479; Williard v. 
 
 Cush. 479. Lugenbuhl, 24 La. Ann. 18; Can 
 
 But if the agent makes the con- v. United States, 13 Ct. of CI. 146. 
 
 tract in his own name, though it is And if the agent does not disclose 
 
 known he is acting for another, he his agency, the principal may still 
 
 may sue in his own name. Buck- sue in his own name, the same as 
 
 bee V. Brown, 2 1 Wend. 112; Harp if the agent were principal and sued 
 
 V. Osgood, 2 Hill, 218; Colburn v. in his own name. NicoU v. Burke, 
 
 Phillips, 13 Gray, 65; Culver v. 78 N. Y. 583; National Life Ins»
 
 PRINCIPAL AND AGENT. 
 
 151 
 
 A principal's right to sue on a contract authorized by 
 him at the time of its making arises immediately from 
 the nature of a contract made by means of an agent. 
 Such an agreement, though made through the interven- 
 tion of an agent, is as much an agreement between the 
 parties as if it had been made between them directl}-. 
 A contract that is with P., {e) made by means of A., [131] 
 
 (<r) Throughout this and the other chapters on agency (Chapters XI I., XX., 
 XXVI.), whenever letters are employed in describing the parties to any trans- 
 action, P. is used for the principal, or alleged principal, A. for the agent of 
 such principal, and T. for the third or other party to the contract or transaction. 
 
 Co. V. Allen, 116 Mass. 390 ; Barry 
 V. Page, 10 Gray, 399 ; Culver v. 
 Bigelow, 43 Vt. 255; Sutton v, 
 Mansfield, 47 Conn. 389; H. R & 
 E. Ry. Co. V. Walsh, 85 111. 59; 
 Sisson V. Cleveland, 14 Mich. 496 ; 
 Thurn v. Alta Tel. Co., 15 Cal. 
 474 ; Oelrichs v. Ford, 21 Md. 501 ; 
 Jowers v. Blandy, 58 Ga. 383 ; Fos- 
 ter v. Smith. 2 Coldw. 475 ; Mc- 
 Nair v. Thompson, 5 Mart. (La.) 
 610; Ramsdell v. United States, 2 
 Ct. of CI. 515. 
 
 When an agent makes a con- 
 tract in his own name on behalf of 
 the principal, and furnishes the 
 money therefor, the principal may 
 still sue on it, though defendant is 
 entitled to as good a position as if 
 the agent had been the real con- 
 tracting party. Baltimore Coal Tar, 
 &c., Co. V. Fletcher, 61 Md. 288. 
 
 One contracting with the agent 
 of an undisclosed principal may, on 
 discovery, hold him on the con- 
 tract, and conversely the principal 
 may assert his rights against the 
 other party thereto, though the 
 agent's relation was one of trust 
 and confidence. Warder v. White, 
 14 111. App. 50. 
 
 A broker sold property not in his 
 
 possession to a vendee, who dealt 
 with him as the owner. The prin- 
 cipal delivered the property at the 
 agent's request, not knowing he 
 had contracted in his own name. 
 The agent having received pay- 
 ment, never having been clothed 
 with authority to do so, is no bar to 
 the suit by principal. Crosby v. 
 Hill, 39 Ohio St. 100. 
 
 Where an agent was deceived by 
 a false entry, showing land he pur- 
 chased for the principal had been 
 redeemed from tax sale, the princi- 
 pal might sue. Perkins v. Evans, 
 61 Iowa, 35. 
 
 When an agent sues in his own 
 name he must disclose the name of 
 his principil in his petition. Wil- 
 liard v. Lugenbuhl, 24 La. Ann. 18. 
 
 When a note is made to the payee 
 as president, agent or cashier, he 
 may sue in his own name. Fair- 
 field V. Adams, 16 Pick. 382 ; Whit- 
 comb v. Smart, 38 Me. 265 ; Ely v. 
 Porter, 58 Mo 158 ; Ord v. McKee, 
 5 Cal. 516. But the principal may 
 sue on a non-negotiable note made 
 payable to his agent if on his be- 
 half. National Life Ins. Co. v. 
 Allen, 116 Mass. 399; Garland v. 
 Reynolds, 25 Me. 46.
 
 152 PARTIF.S TO ACTIONS. 
 
 is as much a contract with P. made by T., the other party 
 to it, as if it had been made with P. by T. through the 
 means, not of A., but of a letter. (/) Hence, for example, 
 on the sale of goods by a shopman, the contract to pay is 
 mantiestly not with the shopman, but with his master, 
 who is obviously the person to sue for the price of the 
 goods. As an agent is, as long as he acts merely as 
 an agent, simply the means of communication between 
 the contracting parties, infants or married women, who 
 are incapable of contracting for themselves, are not capa- 
 ble of contracting as agents on behalf of others. 
 
 A principal's right to sue on a contract which he has 
 ratified depends on the principle that ratification has a 
 retrospective effect, and is equivalent to a prior command. 
 
 If " [A.], unauthorized by me, makes a contract on my 
 behalf with [T.], w^hich 1 afterwards recognize and adopt, 
 there is no difficulty \n dealing with it as having been 
 originally made by my authority. [T.] entered into the 
 contract on the understanding that he was dealing with 
 me, and when I afterwards agreed to admit that such 
 was the case, [T.] is precisely in the position in which he 
 meant to be ; or, if he did not believe [A.] to be acting for 
 me, his condition is not altered by my adoption of the 
 agency, for he may sue [A,] as principal at his option, and 
 has the same equities against me if I sue which he would 
 have had against [A.]." {g) 
 
 A principal may sue on a contract ratified by him after 
 action brought, {h) but his right to sue on the ground of 
 ratification is subject to the following qualifications : 
 [132] First. The contract must at the time of its 
 making be professedly {i) made on behalf of the 
 plaintiff. For " it is clear law that no one can sue upon a 
 contract unless it has been made by him or by an agent pro- 
 fessing to act for him, and has been ratified by him ;" {k) 
 
 (/) See Story, Agency, s. 391. 
 
 (g ) Bird V. Brown, 4 Exch. 786, 798. See Leake, Contracts, 268. 
 {h) Ancona v. Marks, 7 H. & N. 686 ; 31 L. J. 163, Ex. 
 (j) Saunderson v. Griffiths, 5 B. & C. 915, judgment of HoLKOYD, J., Vere 
 r. Ashby, 10 B. & C. 288. 398. 
 
 xk) Watson v. Swann, li C. B., N. S., 769, judgment of Erle, C. J.
 
 PRINCIPAL AND AGENT. 153 
 
 and it seems essential that the agent should not only 
 intend but also profess to act on behalf of the person who 
 subsequently ratifies, since "the rule as to ratification 
 applies only to the acts of one who professes to act as the 
 agent of the person who afterwards ratifies." (/) Thus, 
 where A., a broker, having effected a general policy with 
 T. on goods " to be valued and declared as interest might 
 appear," and having, afterwards, received an order from 
 P. to insure goods for him, indorsed a declaration of 
 P.'s goods on the policy, it was held that P. could not sue 
 on the policy, because it had not been made with P., noi 
 on P.'s behalf, and was not intended, at the time it was 
 made, to be a contract with P. iiii) 
 
 Secondly. The contract must be made with a person 
 capable of being ascertained at the time when the contract 
 is made. («) 
 
 A contract, therefore, can not be ratified by a person 
 not in existence at the time the contract is made, ip) 
 
 But, though " the law obviously requires that the 
 person for whom the agent professes to act must be a 
 person capable of being ascertained at the time, it is not 
 necessary that he should be named ; but there must be 
 such a description of him as shall amount to a reasonable 
 designation of the person intended to be bound by the con- 
 tract." (/) Thus, a ratification may be valid where 
 the agent professes to act for persons filling a certain [133] 
 character, although the actual persons are not then 
 ascertained, or are unknown to him. {q) A. entered into a 
 contract with T. on behalf of an intestate's estate. After 
 the contract was made, P. took out letters of administra- 
 tion. It was held that P. might sue T. upon the contract, 
 lor " the sale was made by a person who intended to act 
 as an agent for the person, whoever he might happen to 
 
 (/) Vere v. Ashby. lo B. & C. 298, per Parkp:, B. 
 {»!) W-itson V. Swann, ii C. B.. N. S., 756 ; 31 L. J. 210, C. P. 
 [n] Ibid., II C. B., N. S., 771, judgment of WiM.KS. J. 
 
 (p) See Kelner v. Baxttr, \.. R. 2, C. P. 174. 186. See as to coini)anics not 
 being liable for acts of promoters, I Lindley, Partnership, 2nd ed., 400. 
 (/>) Watson V. Swann, 11 C. B., N. S., 771, per Wll.LES, J 
 (y) Foster V. Bates, 12 M. & W. 226,
 
 154 PARTIES TO ACTIONS. 
 
 be, who lcg;ally represented the intestate's estate, and it 
 was ratified by the plaintiff after he became adminis- 
 trator ; and when one means to act as agent for another, 
 a subsequent ratification by the other is always equivalent 
 to a prior command. Nor is it any objection that the 
 intended principal was unknown at the time to the person 
 who intended to be the agent." (r) 
 
 Thirdly. The contract sued upon must be ratified 
 wholly, if at all. It can not be ratified in part, {s) 
 
 Fourthly. The ratification must not put the third 
 part}' — i. e., the defendant — in a worse position than he 
 was in at the time of making the contract. (/) 
 
 The contract not being with the agent, he can not sue 
 upon it. He is, in fact, a mere instrument through whom 
 the contract between the parties to it is effected. Thus, 
 if a sale is made by a clerk, shopman, or other servant, he 
 has no right to sue for the price of the goods, [u) Where 
 a mere agent sues another mere agent, the action must 
 fail, through -want of privity between the parties ; i. e., 
 from want of there being, as between them, any contract 
 
 whatever, {x) 
 [134] Some difficulty arises in appljang the law to 
 actions against carriers for non-delivery. The 
 difficulty consists in determining whether the consignor 
 acts on his own behalf or as agent for the consignee, {y) 
 
 The exceptions to the rule under consideration are of 
 two kinds. They are either cases in which the agent 
 must sue and the principal can not sue, or else cases in 
 Avhich either the principal or the agent may sue. 
 
 {r) Ibid., 233, per Curiam. See Tliarpe v. Stalhvard, 5 M. & G. 760 ; 12 
 L. J. 251, C. P.; Watson v. Swann. 11 C. B., N. S. 756, 769 ; 31 L. J. 210, 
 213, C. P. Leake, Contracts, 269 ; and compare 2 Ainould, Marine Insurance, 
 3rd ed., 1033. 
 
 (j) Compare Ferguson v. Carrington, 9 B. & C. 59 ; Foster v. Smith 18 C. 
 B. 156. Smith, Master and Servant, 2nd ed., 156, 157. 
 
 (/) Bird V. Brown, 4 Exch. 786, 798. 
 
 (w) Story, Agency, s. 361. Williams v. Millington, i H. Bl. 81. 
 
 (jr) Depperman v. Hubbersty, 17 Q. B. 767 ; Coombs v. Bristol and Exetei 
 Rail. Co., 3 H. & N. I ; 27 L. J. 269, Ex. ; Hurley v. Baker, 16 M. & W. 26; 
 l6 L. J. 273, Ex. 
 
 (_y) See ante.
 
 PRINCIPAL AND AGENT, 155 
 
 Of the seven following exceptions, the three first are 
 cases in which the agent must sue and the principal can 
 not sue ; the four last are cases in which either the prin- 
 cipal or the agent may sue. 
 
 Exception i. — Where an agent is contracted with by deed in 
 his own name, (s) 
 
 If an agent, though m reality signing as agent for a 
 principal, execute a deed in his own name, he is the only 
 person who can sue upon the instrument ; and this is so 
 even though it be expressed to be made " between A. as 
 agent of T. of the one part, and T. of the other." For if 
 the covenants are with P. he can not sue, as not being a 
 party to the indenture, {a) and if the covenants are with 
 A. he is clearly the only person to sue for their breach, {b) 
 
 Exception 2. — Where the agent is named as a party to a bill 
 of exchange, &c. 
 
 No person can claim upon a ^av of exchange or prom- 
 issory note except the parties named in the instrument. 
 Hence, though the party entitled upon such instrument 
 be an agent, the action must be brought in his 
 name, and can not be brought in the name of the [135] 
 principal, who is not a party, {c) 
 
 This exception would appear to be of small import- 
 ance, since the right to sue on a bill of exchange, cS:c., is 
 assignable, {d) When, therefore, an agent is named as 
 party to a bill of exchange, &c., he can transfer the right 
 to the principal by assigning to him the bill. 
 
 (2) Priestly v. Fernie, 34 L. J. 172, Ex.; 3 H. & C. 977 ; Schack v. An- 
 thony, I M. & S. 573. Compaie Appleton v. Binks, 5 East, 148. See Rule 
 12. 
 
 (a) Berkeley V. Hardy, 5 B. & C. 355. See ante. 
 
 (b) Wilks V. I5nck, 2 East, 142. There is, however, nothing to prevent P. 
 executing a deed by means of A. 
 
 (c) I.eake, Contracts, 302. 
 
 ( </) Rule 15 Excep'ion 2. Compare i Lindlcy, Partnership, 2nd ed. 
 473. 474-
 
 (56 PARTI JiS TO ACTIONS. 
 
 Exception 3. — Where tlie right to sue on a contract is by 
 the terms or circumstances of it expressly restricted to the 
 agent. 
 
 Though A. is acting as agent of P., either T. may 
 decline expressly to contract with any other than A., 
 or else it may be manifest from the circumstances of the 
 contract that T. contracted with A., and with A. only. 
 In this case, although A. may have been, as a matter of 
 fact, acting as agent for P., and though P. may have rights 
 as against A., yet P., with whom T. never contracted, can 
 .lot sue T., and A., who is the only person with whom he 
 did contract, is the only person who can sue T. Thus, 
 where a contract was made with A., one of several part- 
 ners, in his individual capacity, and he at the time de- 
 clared that he alone was interested in it, it was held that 
 the other partners, although they might be interested in 
 it, could not sue. upon it ; {e) for though the partner 
 might, as regards his fellow-partners, act as their agent, 
 yet "if one partner makes a contract in his individual 
 capacity, and the other partners are willing to take the 
 benefit of it, they must be content to do so according to 
 the mode in which the contract was made." (/) 
 
 If T. contracts with A. in consideration of the knowi 
 personal capabilities of A. , he can not be made liable t( 
 P., for whom A. was acting as agent, {g) 
 
 A. executed a charter-party, in which he was 
 
 [136] described as owner of the ship; it was held that 
 
 evidence was not admissible to show that P. was 
 
 the real owner of the ship, in order to entitle him to sue 
 
 upon the charter-party. (//) 
 
 This exception contains the principle which governs 
 all the exceptional cases in which an agent can sue for a 
 breach of contract, and a principal can not. The reason 
 of this peculiarity always is, that the other contracting 
 
 (^"1 Lucas V. De la Cour, i M. & S. 249. 
 
 (/) Ibid., 250, per Ei.lenborough, C. J. 
 
 \g) Robson V. Diummond, 3 B. & Ad. 303. 
 
 (,h) Humble v. Hunter, 12 Q. B. 310 ; X7 L. J. 350. Q. B.
 
 PRINCIPAL AND AGENT. 157 
 
 party has contracted with the agent alone. That the 
 contract was made with him alone may appear by the 
 form of the contract itself {c. g., where it is by deed), or 
 may be proved from the circumstances of the case. But 
 the reason why the agent alone can sue will be found to 
 be in every instance the same, viz., that as between him 
 and the other party to the contract, he has contracted not 
 as an agent, but as sole principal. 
 
 Exception 4. — Where the contract is made with the agent 
 himself; i. e., where the agent is treated as the actual party 
 with whom the contract is made. 
 
 " If an agent makes a contract in his own name, the 
 principal may sue and be sued upon it, for it is a general 
 rule that whenever an express contract is made, an action 
 is maintainable upon it, either in the name of the person 
 with whom it was actually made {i. e., the agent], or in 
 the name of the person with whom in point of law it was 
 made [i. e., the principal.]" {i) The agent can sue because 
 he has been treated by the other party as the party to the 
 contract. The principal can sue because he is the person 
 really interested in the contract, for whose benefit it is 
 made, and with whom the law considers it to be made ; 
 {k) for though a person who has expressly contracted with 
 A. can not treat the contract as not being with A., 
 on the ground that another person, P., is really in- [137] 
 terested, yet when a contract is made expressly 
 with A., either by word of mouth or in writing (provided 
 the written instrument be not a deed), it is allowable for 
 P., the person really interested, to show that the contract 
 is, though on the face of it with A., yet in reality with 
 him, and that he, therefore, has a right to sue upon it. 
 
 " Where an agent makes a contract, stating who his 
 principal is, the principal, and not the agent, is the person 
 
 (i) Cothny V. Fcnnfll. lo B. & C. 671, 672, per CURIAM. 
 
 (k) This case differs from those included under Exception 3, since, in tnose, 
 the afjent was treated not only as a party, but as the only party to the 
 contract,
 
 158 PARTIKS TO ACTIONS. 
 
 C^encrally the party to the contract, if the agent have the 
 authority he alleges. But on the other hand, an agent 
 may, and often does, make himself personally a party to 
 the contract, if the form of the contract be such as to 
 amount to saying, ' Although I am an agent only, never- 
 theless I contract for myself; ' and although the principal 
 may in some cases take advantage of such a contract, the 
 agent, being the contracting party, is clearly liable, and 
 can therefore sue upon it." (/) 
 
 Nor does it appear to make any substantial difference 
 whether the contract is in writing or by word of mouth. 
 The only difference seems to be " that if the contract is 
 by word of mouth, it is not possible to say from the 
 agfent using: the words ' I ' and ' me ' that he means him- 
 self personally; whereas, if the contract is in writing 
 signed by his own name, in speaking of himself as con- 
 tracting, the natural meaning of the words, is, that he 
 binds himself personally, and he is taken to do so, and 
 then the other party is bound to him." {jn) 
 
 An agent was employed by a corporation as auctioneer 
 to let land belonging to the corporation, and was known 
 to be acting in this capacity, yet he was held entitled to 
 bring an action in his own name for the hire of the land, 
 («) and the decision was thus explained by Blackburn, 
 
 " The plaintiff says, * I, as auctioneer, that is, as 
 [138] agent, let the land, and I contract that on the price 
 being paid to me, the person paying the price shal 
 have the enjoyment of the land.' The agreement was not 
 reduced to writing, but that is the effect of the conditions, 
 of the auction, and what took place at the auction. It 
 may be that it was known that the plaintiff was not 
 .acting for himself, not under the directions of the race or 
 some other committee, but that is immaterial for the 
 present purpose, if a contract be made with the agent 
 notwithstanding he is known to be an agent. There 
 
 (/) Fisher v. Marsh. 34 L J. 178. Q. B- per Blackburn, J. 
 (m) Williamson v Barton, 7 11. & N. 907, per Bramwell, B. 
 («) Fisher v. Marsh, 34 L. J. 177. Q- B. ; 6 B. & S. 411.
 
 PRIXCIPAL AND AGENT. 159 
 
 were numerous reasons why the contract should be made 
 by and with the plaintiff himself, and at all events there 
 was evidence for the jury that the contract was made with 
 him." {p) 
 
 " The rule of law that the agent who makes the con- 
 tract may bring an action on the contract in respect of 
 his privity, an J the principal in respect of his interest," 
 (/) or, in other words, that where an agent is made a 
 party to a contract, either the principal or the agent may 
 sue for a breach of it, includes within it several cases 
 which are sometimes reckoned separate exceptions to the 
 general rule, {q) Under this head might be brought the 
 following exception, which is more conveniently treated 
 as a separate exceptional case. 
 
 Exceptiofi 5. — Where the agent is the only known or osten 
 sible principal, or where the agent has made a contract not 
 under seal in his own name for an undisclosed principal, (r) 
 
 " It is a well-established rule of law that where a con- 
 tract not under seal is made by an agent in his own 
 name for an undisclosed principal, is) either the [139] 
 agent or the principal may sue on it. The defendant 
 in the latter case being entitled to be placed in the same 
 situation at the time of the disclosure of the real principal 
 as if the agent had been the contracting party. The rule 
 
 {d) Fisher v. Marsh, 34 L. J. 178, Q. B., judgment of Blackiujrn, J. Con 
 trast Evans v. Evans, 3 A. & E. 132 ; and compare Higgiiis v. Senior, 8 M. & 
 W. 834; II L. J. 199, Ex. 
 
 (/) Sykes v. Giles, 5 M. & W. 650, per Ahinger, C. B. 
 
 (17) OfTley V. Ward, I Lev. 235 ; Joseph v. Knox, 3 Camp. 320 ; Piggott v. 
 Thompson, 3 B. & P. 129. Hagedorn v. Oliverson, 3 M. & S. 4S5. Compare 
 Clay V. Souihen, 2i I.. J. 202, Ex., nom.. Clay v. Sothern, 7 Exch. 717, con- 
 trasted with Lucas v. Beale, 20 L. J. 134, C. P. ; 10 C. B. 739. 
 
 (r) Sims v. Bond. 5 B. & Ad. 389 ; 2 Smith, L. C. fnh ed., 355. 
 
 (s) The expression " undisclosed principal " is ambiguous. It means cither 
 a principal who is known to exist, l)Ut wlmse name is not known h) the party 
 entering into the contract, or a principal who>e existence is not known ; e.s;., 
 where the other party conceives the agent to he himself the principal. In cither 
 case the agent must, from the nature of the thing, contract in his own name, and 
 in either case either the principal or the agent may sue. .Schmaltz v. Avery, 20 
 L J. 228, Q. B. Story, Agency, ss. 393-410. Compare Thomson v. Daven- 
 port. 2 Smith, L. C. 6th ed., 327. 334-
 
 i6o PARTIES TO ACTIONS. 
 
 is most frequently acted upon m sales by factors, agents, 
 or partners, in which case either the nominal or the real 
 plaintilT may sue, but it may be equally applied to other 
 cases." (/) 
 
 Exception 6. — Where an agent has made a contract in the 
 subject-matter of which he has a special interest or property. 
 
 Under this exception auctioneers, factors, and other 
 agents of a similar kind have a risfht to sue for the price 
 of goods sold by them. They are not mere agents, but 
 persons who have an interest in the goods, and to the 
 extent of that interest principals. Thus A., an auctioneer 
 employed to sell the goods of P., has been held able to 
 maintain an action for goods sold and delivered against 
 T., the purchaser, {x) 
 
 " An auctioneer has a possession coupled with an in- 
 terest in goods which he is employed to sell, not a bare 
 custody like a servant or shopman. There is no differ- 
 ence whether the sale be on the premises of the owner, 
 or at a public auction room ; for on the premises of the 
 owner an actual possession is given to the auctioneer and 
 his servants by the owner, not merely an authority to 
 sell. I have said a possession coupled with an interest, 
 but an auctioneer has also a special property m him 
 coupled with a lien for the charges of the sale, the 
 [140] commission and the auction duty which he is bound 
 to pay. In the common course of auctions there is 
 no delivery without actual payment ; if it be otherwise 
 the auctioneer gives credit to the vendee entirely at his 
 own risk." {y) 
 
 Jixception 7. — Where the agent has paid away money of the 
 principal's under circumstances which gave a right to recover 
 it back. 
 
 {() Sims V. Bond, 5 B. & Ad. 393, per Curiam. 
 
 (x) Williams v. Millington, i H. Bl. 8r. A broker is not such an agent, 
 and can not sue on contracts made by him as a broker. Fairlie v. Fenton, i 
 L. R. 5 Ex. 169. 
 
 {y) Williams v. Millington, i H. Bl. 84, 85, judgment of Loughborough 
 C.J.
 
 PRINCIPAL AND AGENT. i6i 
 
 " If an agent pays money for his principal by mistake 
 or otherwise which he ought not to have paid, the agent 
 as well as the principal may maintain an action to recover 
 it back." {z) T., a custom-house officer, exacted from A., 
 the master of a ship, exorbitant fees on account of the 
 ship. The payment of the particular fees was imposed by 
 statute upon the master personally. It was held that 
 either the owners or the master might sue the custom- 
 house officer for the excess, {a) 
 
 The four last exceptions all {b) rest on the ground 
 that, while the principal has the ordinary right of every 
 principal to sue for the breach of a contract made on his 
 behalf, the agent has been dealt with as a party (though 
 not the only part}^) to the contract or to the transaction 
 which g-ives a rio^ht of action as if there had been a breach 
 of contract, e. g., where the agent sues for money of his 
 principal's which he was wrongfully induced to pa}'. 
 
 The choice or election of suing in the name either of 
 the principal or the agent is subject to certain limitations, 
 of which the object is to secure that this right of choice 
 or election shall not be so exercised as to work injustice 
 to any of the persons concerned in the contract. 
 
 1st. The agent's right to sue is subject to the princi- 
 pal's right of interposition. " Wherever the princi- 
 pal, as well as the agent, has a right to maintain a [141J 
 suit upon any contract made by the latter, he may 
 generally supersede the right of the agent to sue, by 
 suing in his own name, {c) So the principal may, by his 
 own intervention, intercept or suspend or extinguish the 
 rights of the agent under the contract, as if he makes 
 other arrangements with the other contracting party, or 
 waives his claims under it, or receives payment thereof, 
 or in any other manner discharges it. This, indeed, re- 
 sults from the general principle of law, that every man 
 may waive or extinguish rights, the benefit whereof ex- 
 
 («) Story, Agency, s. 398. 
 (a) Stevenson v. Mortimer, Cowp. 806 
 {b) Exceptions, 4-7. 
 {c) Sadler v. Leigh, 4 Camp. 194. 
 11
 
 1 62 PARTIES TO ACTIONS. 
 
 clusively belongs to himself, and that whatever rights are 
 acquired by an agent are acquired for his principal." {d) 
 
 This doctrine applies strictly only where the agent 
 entering into the contract is the mere representative of the 
 principal, and has acquired .no interest, lien, or other 
 claim under it by virtue of his agency. For if he has 
 (r. ^.,as being a factor) acquired such interest, lien, or 
 other claim, then to the extent thereof he is entitled to 
 protection, as well against the principal as against the 
 other contracting party, {e) 
 
 2ndl3\ Where an undisclosed principal sues on a con- 
 tract made with his agent, " the defendant is entitled to 
 be placed in the same situation at the time of the dis- 
 closure of the real principal as if the agent had been the 
 contracting party ;" (/) (that is) the defendant may avail 
 himself of all defenses which would have been available 
 to him against the agent at the time of the disclosure had 
 that agent been really a principal, {g) 
 
 By " undisclosed " principal is here meant a prm- 
 { 142] cipal of whose existence as principal the defendant 
 was unaware at the time of making the contract, 
 and not a principal whose name was unknown to the 
 defendant, but whom he knew or supposed to exist. In 
 other words a defendant who contracts with an agent 
 supposing him to be a principal, may m an action by the 
 real principal avail himself of defenses good against the 
 agent. But a defendant who contracts with an agen 
 knowing him to be only an agent, but not knowing whost 
 agent he is, can not, in an action by the principal, avail 
 himself of a defense good against the agent. (//) 
 
 3rdly. When an agent sues in his own name the de- 
 fendant may avail himself of those defenses which are 
 
 id) Story, Agency, s. 403. 
 
 (e) Story, Agency, s. 407. Drinkwater v. Goodwin, Cowp. 251 ; Morris v. 
 Cleasby, i M.& S. 576 ; Hudson v. Granger, 5 B. & Aid. 27 ; Coppin v. Wali<er, 
 7 Taunt. 237 ; Robinson v. Rutter, 4 E. & B. 954 ; 24 L. J. 250. Q. B. 
 This case seems to show that notice is not needed. Smith, Mercantile Law, 
 7th ed., 161, 162. But see Grice v. Kendrick, L. R. 5, Q. B. 340. 
 
 (/) Sims V. Bond, 5 B. & Ad. 393, per Curiam. 
 
 (s) Thomson v. Davenport, 2 Smith, L. C. 6th ed., 359. 
 
 (A) Semenza v. Brinsley, 34 L. J. i^i, C. P. ; 18 C. B.. N. S.. 467.
 
 PRINCIPAL AND AGENT. 163 
 
 good as against the agent Avho is the plaintiff on the 
 record, (z) and may also avail himself of those defenses 
 which are good against the principal for whose benefit 
 the aciion is brought, {k) 
 
 The results of suing in the name of the principal or 
 the agent are exemplified by the rules as to the right of 
 set-off. 
 
 Set-off.— T. contracts with A., the agent of P., under 
 circumstances which make it possible for an action to be 
 brought either by P. or A. 
 
 An action is brought by P. 
 
 T. can set-off" against a debt claimed by P. any debts 
 due from P. to T. If T. supposed A. to be contracting 
 as principal, he can also set-off debts due from A. to 
 T. (/) If T. knew that A. was contracting as an agent, 
 even though T. did not know that he was contracting as 
 an agent of P., and a fortiori, if T. knew that A. 
 was contracting as an agent of P., T. can not set off [143] 
 debts due from A. to him. {m) 
 
 Where a purchaser bought goods of a person whom he 
 knew to be only an agent, though he did not know whose 
 agent h6 was, it was held that the purchaser could not, 
 in an action bv the principal for the price of the goods, 
 set-off a debt due to the purchaser from the agent. For, 
 in order to make this defense of set-off " a valid defense, 
 it seems obvious that the plea must show that the con- 
 tract was made by a person whom the plaintiff entrusted 
 with the possession and the ownership of the goods, that 
 he sold them as his own in his own name as princii)al 
 with the authority of the plaintiff, and that the defen- 
 
 (»■) Gibson v. Winter, 5 15. & Ad. 96. See ante. 
 
 ik) Thomson v. Davenport, 2 Smith. L. C. 6th ed., 358, 350. This doc- 
 trine, thougli true in general, is subject to considerable qualifications, and does 
 not apply where the agent suing is not a mere agent, i. e., where he has him- 
 self an interest in the contract. See, e.g., Robinson v. Rutter, 4 E. & H. 954 ; 
 24 L. J. 250. Q. IJ. 
 
 (/) George v. Ciaggett. 7 T. R. 359 ; 2 Smith. L. C, 6th ed., 113, 115. 116; 
 Sims V. IJond. 5 B. & Ad. 393. 
 
 {m) Semenza v, Brin.slcy, t3 C. U.. N. S, 467 ; 34 I- J- 'f". C. P.
 
 i64 PARTIES TO ACTIONS. 
 
 riant then believed him to be the principal in the trans- 
 action." (//) 
 
 An action is brought by A. 
 
 T. can set-off debts due to him from A. T. can not, it 
 would seem, set-off debts due to him from P. {p), though, 
 perhaps, such debts may now be pleaded as an equitable 
 defense. (/) The difficulty of pleading this set-off de- 
 pends upon the words of the statute allowing set-off. {g) 
 Other defenses, e. g., payment to the principal, may in 
 many cases be pleaded in an action by the agent ; but if 
 the agent suing is not a mere agent, — /. e., is a person 
 such as a factor or auctioneer, who has an interest in the 
 contract — it would seem that defenses against the princi- 
 pal only are not available in an action by the agent, (r) 
 
 Rule i8. — A person who enters into a contract 
 in reality for himself, but apparently as agent 
 [144] for another person, whom he does not name, 
 can sue on the contract as principal, (s) * 
 
 («"! Semenza v. Brinsley, 34 L. J. 163, C. P., per CURIAM. See Dresser v. 
 Norwood. 17 C. B., N. S., 466 ; 34 L. J. 48, C. P. 
 
 {o) Isberg v. Bowden, 8 Exch. S52. 
 
 (/) Leake, Contracts, 304; Cochrane v. Greene, 9 C. B., N. S., 448 ; 30 L. 
 J. 97, C. P. 
 
 {q) 2 Geo. 2, c. 22, s. 13. See 8 Geo. 2, c. 24. 
 
 (r) Robinson v. Rutter, 4 E. & B. 954, 24 L. J. 250, Q. B. 
 
 (.f) Schmaltz v. Avery, i6 Q. B. 655 ; 20 L. J. 228, Q. B. 
 
 • J.. " Every man has a right to you, A., alone ; I will have no deal- 
 elect what parties he will deal with." ing with P.,' and if A assent to this, 
 Winchester v. Howard, 97 Mass. then if P. sue, he will, if his agent 
 303. " Hence an undisclosed prin- were authorized and competent to 
 cipal by interfering in such a case bind him, be estopped by his 
 must do so subject to whatever agent's act." Wharton on Agency 
 equities bear upon the ostensible and Agents, ^ 431. 
 principal. It is true that where the But in Hamet v. Letcher, 37 Ohio 
 contract is made with the agent, St. 356, where R. bought hogs of 
 with no conditions excluding lia- H , representing that he was agent 
 bility to another, then the undis- for L. & Co., responsible hog buy- 
 closed principal may, on disclosing ers and shippers. R. paid H. about 
 himself, sue. But if the other con- one-third of the money down and 
 tracting party say ' I contract with received the hogs and drove them
 
 PRINCIPAL AND AGENT. 165 
 
 A person sometimes contracts avowedly and on the 
 face of the contract as an agent, but in reality on his 
 own behalf, and without regard to any principal. The 
 so-called agent is then in reality not an agent, but a per- 
 son contracting for himself. If the person so contracting 
 merely avows himself to be an agent, and does not give 
 the name of any principal for whom he alleges himself to 
 be acting, he can sue on the contract as a principal, the 
 reason of this being, that the defendant can not be sup- 
 posed to have entered into the contract in reliance on a 
 principal whose name was not known to him. {t) 
 
 \ Rule 19. — A person who contracts, in reality for 
 himself, but, apparently, as agent for another person, 
 whose name he gives, can not sue on the contract as 
 principal. 
 
 A. induces T. to contract with him as being the agent 
 and as acting on behalf of a principal P., whom A. names, 
 though in fact A. has no authority to act on behalf of P., 
 and is in reality entering into a contract for his own 
 benefit. A., under these circumstances, can not treat the 
 contract as made with himself, and sue in his own name 
 on showing himself to be the real principal, {u) The 
 
 {/) Schmaltz v. Avery, i6 Q. B. 655 ; 20 L. J. 22S, Q. B. 
 («) Leake. Contracts, 306. Sch.naltz v. Avery, 16 Q. B. 655 ; 20 L. J. 22S, 
 Q. B. ; Hickerton v. Burrell, 5 M. & S. 383. 
 
 to L. & Co. and sold them as his such agent, which representation 
 
 own and received from them their was wholly false, as R. well knew, 
 
 full value, it was held that "this This, therefore, was not a contract 
 
 was not a sale to R. in his own voidable merely, but an agreement 
 
 right. He made no proposition to wholly void, and under the circum- 
 
 buy in any other way than as stances the property in the hogs 
 
 agent. H. did not agree to sell to never passed from H. * * * 
 
 any other than L. & Co., who Moody v. Blake. 117 Mass. 23; 
 
 never agreed to buy of him, and he Barker v. Dinsmore, 72 Pa. St, 427 ; 
 
 was induced to sell solely by reason Saltus v. P:verett, 20 Wend. 267 ; 
 
 of R.'s representation that he was Fawcett v. Osborn, 32 111. 411.
 
 1 66 PARTIES TO ACTIONS. 
 
 ground of the rule is that T. did not mean to contract 
 with A., but meant tc contract with P., and that P. can 
 not by his act turn a contract with another person into 9 
 
 contract with himself, {v) 
 [145J It may be considered doubtful whether, when 
 
 the contract is partly executed, A. can not, if the 
 contract be not one involving reliance on the personal 
 skill of P., sue T. on showing that he is the principal, and 
 after giving T. notice of the fact, {x) 
 
 A. contracted in writing with T. for the purchase of 
 an estate expressly as agent of P., named in the contract 
 a.s principal, but without any authority from the latter, 
 and being himself the real principal in the transaction, 
 and paid a deposit in part payment of the purchase 
 money. It was held that A. could not maintain an 
 action to recover the deposit without giving notice to T. 
 of his real position as principal, {y) " Where a man," it 
 is said in this case by Ellenborough, C. J., " assigns to 
 himself the character of an agent to another whom he 
 names, I am not aware that the law will permit him to 
 shift his situation, and declare himself to be the principal, 
 and the other to be a mere creature of straw. That, I 
 believe, has never yet been attempted. Now, on the face 
 of this agreement, it is stated that the plaintiff made the 
 purchase, paid the deposit, and agreed to comply with 
 the conditions of sale for P., and in the mere character of 
 agent. Is not this account of himself to be taken fortis- 
 sime contra proferentem ; that is, that he was really treat- 
 ing in the character which he assigned to himself at the 
 time of the purchase, and has not the defendant with 
 whom the plaintiff dealt as agent a right still to consider 
 him as such, notwithstanding he would now sue in the 
 character of principal? Supposing that he might, under 
 a different state of circumstances, have entitled himself to 
 sue in his own name, surely the defendant ought to have 
 had notice of the plaintiff 's real situation before ne is 
 
 {v) Boulton V. Jones, 2 U. & N. 564 ; 27 L. J. 117, Ex. 
 (jr) Compare Smith's Mercantile Law, 7lh ed., 162 
 (y) Bickenon v. Bun ell, 5 M. & S. 383.
 
 PRINCIPAL AND AGENT. 167 
 
 subjected to an action at the plaintiff's suit, and while it 
 was open to him to make a tender." {z) 
 
 A. made a written contract for the sale and [146] 
 delivery of the goods to T., in which he described 
 himself as agent for P., a named principal; and T., after 
 having full knowledge that A. was not an agent, as 
 described, but was the real principal in the transaction, 
 accepted a part delivery of the goods from A., and paid 
 for them. It was held that T. could not afterwards refuse 
 to receive and pay for the remainder, and that A. might 
 sue in his own name upon T.'s default in doing so. {a) 
 
 "The defendant's counsel . . . cited the case of 
 Bickerton v. Burrell, {b) as an authority that the plaintiff 
 could not sue ... in his own name. That case is 
 mdeed, in one respect stronger than the present, inas- 
 much as that was for money had and received, whereas 
 this is a case of an executory contract. If, indeed, the 
 contract had been wholly unperformed, and one which the 
 plaintiff, by merely proving himself to be the real prin- 
 cipal, was seeking to enforce, the question might admit 
 of some doubt. In many such cases, such as, for instance, 
 the case of contracts in which the skill or solvency of 
 the person who is named as the principal may reasonably 
 be considered as a material ingredient in the contract, it 
 is clear that the agent can not then show himself to be the 
 real principal, and sue in his own name ; and perhaps it 
 may be fairly urged that this, in all executory contracts, 
 if wholly unperformed, or if partly performed, without 
 the knowledge of who is the real principal, may be the 
 general rule. But the facts of this case raise a totally 
 different question, as the jury must be taken to have found, 
 under the learned judge's direction, that this contract 
 has been in part performed, and that part i)err()rmance 
 accepted by the defendants with full knowledge that the 
 plaintiff was not the agent, but the real principal. If so. 
 we think the plaintiffs may after that very proi)erly say 
 
 («) Ibifl.. 386. 387, per ELLENBOROunic, C. J. 
 
 (fl) Rayncr v. Grote. 15 M. & W. 359 ; 16 L. J. 79. Kx. 
 
 {b) 5 M. & S. 383.
 
 1 68 PARTIES TO ACTIONS. 
 
 that they can not refuse to complete that contract 
 [147] bv receiving the remainder of the goods and paying 
 
 the stipulated price for them. And it may be ob- 
 served that this case is really distinguishable from Bicker- 
 ton V. Burrell {c) on the very ground on which that case 
 was decided ; for here, at all events, before action brought 
 and trial had, the defendants knew that the plaintiff was 
 the principal in tlie transaction." {d) 
 
 In spite of some expressions used by the judges in 
 deciding the two foregoing cases, there is, it is submitted, 
 no case showing that a person who has entered into a 
 contract for a named principal can afterwards sue on that 
 contract in his own name, on showing himself to be the 
 principal. To allow him to sue would be to violate the 
 "rule of law, that if a person intends to contract with A., 
 B, can not give himself any right under [the contract]. "(r) 
 
 (c) 5 M & S. 383. 
 
 (d) Rayner v. Grote, 15 M. & W, 365, 366, per CURIAM. 
 {e) Boulton v. Jones, 2 H. & N. 565, per Pollock, C. B.
 
 PARTNERS AND COMPANIES. 169 
 
 CHAPTER VI. 
 
 PARTNERS AND UNINCORPORATED COMPANIES. 
 
 Rule 20. — A firm or an unincorporated company 
 can not sue in its name as a firm or as a company, 
 but must sue in the names of the individual members 
 of the firm or of the company.^ 
 
 A firm is apt to be considered by the pubUc as a cor- 
 poration, i. e., as a body distinct from the members com- 
 posing it, and possessing rights and incurring habihties 
 distinct from those of its members, {a) But a firm is 
 not, in the courts of common law, recognized as in any 
 way distinct from the persons who compose it. Hence, 
 the firm of M. & Co., being nothing more than the indi- 
 viduals A., B., and C, of whom it consists, any change 
 amongst its members destroys its identity, and the so- 
 called property, debts, and liabilities of the firm are, in 
 truth, merely the property, debts, and liabilities of A., B., 
 and C, who compose the firm, {b) 
 
 From this legal view of a partnership or firm, it follows 
 that the rules which apply to actions by or against mem- 
 Ders of a firm, that is, persons who in ordinary language 
 are called partners, equally apply to the proceedings 01 
 persons who 'are partners in one particular transaction 
 
 (a) See (.'hapter VII. 
 
 (h) I Linflley, Partnership, 2n(l e<l., 20S, 209. Richardson v. IJank of Eng 
 land. 4 Myl. & Cr. 171. 172 ; De Tastet v. Shaw, i B. .S: Ahl. 664. 
 
 I. All the members of the firm teau v. Raitt, 20 Ohio, 144. A 
 
 must be named as plaintiffs unless managing partner cannot sue for 
 
 they are dormant parties. Wright all. Krainerd v. Bertram, 5 Abb. 
 
 V.Williamson, 3 N J. L. 978 ; Smith N. C. 193; Halliday v. Doggett, 6 
 
 V. Crichton, 33 Md. 106 ; Am. Cent. Pick. 350. 
 Ry. Co. V. Milas, 52 111. 178 ; Cho-
 
 I/O PAR'J7ES TO ACTIONS. 
 
 only, {c) and who, therefore, miglit not generally be con- 
 sidered as tornnng a partnership. 
 [149] The member of a partnership is, at law as in com- 
 
 merce, the agent of the firm for transacting its busi- 
 ness, and, therefore, every partner fills the character both 
 of a principal and of an agent, {d) 
 
 An " unincorporated company " is fundamentally a 
 large partnership, {c) from which it differs mainly in the 
 following particulars, viz., that it is not bound by the 
 acts of the individual partners, but only by those of its 
 directors or managers ; (/) that shares in it are trans- 
 ferable ; {g) and that it is not dissolved by the retirement, 
 ileath, bankruptcy, &c., of its individual members, {h) 
 
 It follows, from the characteristics of a firm, that an 
 action by a partnership, whether trading under the name 
 of M. & Co., or, e. g., of the Royal Mining Company, must 
 be brought in the names of A., B., C, &c., who compose 
 the partnership, {i) And this holds good even though the 
 company consists of a hundred persons. 
 
 The difficulty which this rule places in the way of 
 actions on contract {k) by unincorporated companies, has 
 led to many futile attempts to evade it ; e. g., by bringing 
 actions in the name of the chairman or of the directors 
 pro. tem., (/) or of some servant, e. g., the purser {m) of 
 the company. 
 
 The shareholders in a cost-book mining company 
 agreed " that calls in arrear should be considered to be 
 debts due from the defaulting shareholder to the pur^ser ;" 
 but an action brought against the defaulter by the purser 
 
 (c) Hill V. Tucker, i Taunt. 7 ; Osborne v. Harper, 5 East, 225 ; H"tsall v. 
 Griffith, 4 Tyr. 4S7. 
 
 {d) Story, Partnership, 2nd ed., s. I. Cox v. Hickman, 8 H. L. 268 • 30 L. 
 J. 125, C. P. ; Kilshaw v. Jukes, 34 L. J. 217, Q. B. ; 3 B. & S. 847 ; BMlen v. 
 Sharp, L. R. I, C. P. 86 ; 35 L. J. 105, C. P. 
 
 \_e) I Lindley, Partnership, 2nd ed., 495. 
 
 (/) Ibid., 249. Burnes v. Pennell, 2 H. L. 497. 
 
 {g) I Lindley, Partnership, 2nd ed., 237, 221. 
 
 (h) Ibid., 238, 497. 
 
 (i) Woolf V. City Steam Boat Co.. 7 C. B. 103 ; 18 L J- 125, C. P. 
 
 {k) Rule 13, and Chapter XXXIV. 
 
 (/) Phelps V. Lyle, 10 A. & E. 113. 
 
 <w) Hybart v. Parker, 4 C. B., N. S. 209 ; 27 L. J. 120, C. P.
 
 PARTNERS AND COMPANIES. lyi 
 
 was held not to be maintainable, as being " nothing more 
 nor less than the case of a person who is a mere 
 servant of the company suing a member of the [150] 
 company between whom and himself there [was] 
 no privity of contract and no consideration." («) 
 
 Exception i. — Where an unincorporated company is em- 
 powered by statute to sue, &c., in the name of its public 
 officer. 
 
 Some unincorporated companies ip) are enabled to sue 
 (and liable to be sued) in the name of their public officer, 
 e. g., secretary, manager, &c. ; and proceedings taken by 
 or against him may be continued by or against his suc- 
 cessors. 
 
 Exception 2. — Where an unincorporated company is being 
 wound up. 
 
 In the case of an unregistered (/) company, the rourt 
 of chancery {q) may, on the company's being wound up, 
 make an order vesting its property in the official liquida- 
 tor; and, if such an order is made, he may sue (and be 
 sued) in his official name, or in such other name as the 
 court may direct, as the representative of the company, (r) 
 
 («) Hybart v. Parker, 27 I.. J. 122, C. P., judgment of Williams, J., 
 ante. 
 
 (p) a. Banking companies under 7 Geo. 4. c. 46 (extended by 27 & 2S Vict. 
 c. 32). b. Companies under Letters Patent Act (7 Will. 4 & i Vict. c. 73). c. 
 Companies formed under private Acts. 
 
 (p) See Companies Act, 1862 (25 & 26 Vict. c. Sq'), s. igg, by which an un- 
 registered company is defined as " any partnership, association, or company, 
 except railway companies incorporated by Act of Parliament, consisting of more 
 than seven members, and not registered under this Act." A company registered 
 under the previous Acts seems, for the purpose of winding-up, to be considered 
 a registered company. In re Torquay Path Co., 32 Beav. 582. Compare 2 
 Lindley, Partnership, 2nd ed., 1491 and 1214. [t should also be remarked that 
 •X company may be registered under the Act of 1S62 for the pur )ose of being 
 ■wound up. 
 
 (q) In the case of a mining company subject to the jurisdiction of the Stan- 
 naries, the Court of the Vice-Warden of the Stannarie. ; and in the case of a 
 company registered in Ireland, the Irish Court of Cliancery ; and of a company 
 registered in Scotland, the Court of Session. Comjjanics Act, 1862, s. 81. 
 
 (r) Sec Ci-mpanics Act, 1662 (25 & 26 Vict. c. 8g), s. 203. Compare I
 
 1/2 PARTIES TO ACTIONS. 
 
 [151] Rule 21. — All persons who are partners in 
 
 a firm, or members of an unincorporated com- 
 pany, at the time when a contract is made with the 
 firm or the company, should join in an action for 
 the breach of it. 
 
 A firm being merely the persons who compose it, this 
 rule is simply an apphcation of the general principle that 
 all the persons with whom a contract is made must join 
 in an action for the breach of it. {s) ' 
 
 The rule is modified by the existence of dormant and 
 nominal partners. 
 
 A dormant partner is a person who does not appear to 
 be a partner, but is so, and occupies the position of an 
 undisclosed principal, (/) and therefore always may, and 
 never need {u) join in an action on a contract made with 
 the firm. 
 
 The firm of M. & Co. consists of A., B., and C, of whom 
 A. and B. are known partners, and C. a dormant partner. 
 If a contract is made either with the firm of M. & Co. or 
 with A. on behalf of the firm of M. & Co., an action for 
 the breach thereof may be brought either by A. and B., 
 or by A., B., and C. 
 
 A nominal partner is a person who appears to be a 
 partner, but is not so. He sometimes must, and some- 
 times need not, jom in an action on a contract made with 
 the firm. 
 
 I St. If a contract is made expressly with a real and 
 
 Lindley, Partnership, 2nd ed., 1274, 1275. The fact that a company has stopped 
 payment does not prevent it from suing and being sued by its public officer. 
 Davidson v. Cooper, li M. &. W. 778. i Lindley, Partnership, 2nd ed., 501. 
 
 {s) See Rule 13. Bullen. Pleadings, 3rd ed., n. {a), 227. See Phelps v. 
 Lyle, 10 A. & E. 113 ; Garrett v. Handley, 3 B. & C. 462 ; Teed v. Elworthy 
 14 East, 210. I Lindley, Partnership, 2nd ed., 477. 
 
 (/) See Rule 17. Exception 5. Cothay v. Fennell, 10 B. & C. 671. 
 
 (m) I Lindley, Partnership, 2nd ed., 476, 477. Phelps v. Lyle, ro A. & E 
 113 ; Leveck v. Shafto, 2 Esp. 468.
 
 PARTNERS AND COMPANIES. 173 
 
 with a nominal partner, they must join in suing on 
 it. {x) 
 
 2ndly. Prima facie, a nominal partner ought [152] 
 to join in suing on any contract, whether express 
 or impUed, made with the firm ; for an agreement with 
 the firm is prima facie an agreement with the persons 
 who apparently make up the firm. But if it be dis- 
 tinctly shown that a person who is apparently the mem- 
 ber of a firm is in reality not so {i. <?., that he is 
 merely a nominal partner), a contract made with the firm 
 is not in reality made with him, and he need not join ir 
 suing upon it. [y) 
 
 3rdly. It is an open question whether a nominal partner 
 can join in cases in which it has been established that 
 there is no necessity for his joining, {z) As a mis-joinder 
 {a) is a much less serious error than a non-joinder of plain- 
 tiffs, a nominal partner should, as a matter of prudence, 
 join in all actions on contracts made with the firm. 
 
 A partner or member of an unincorporated company 
 can not join in suing on any contract made before he 
 joined the firm or company, {b) since he was not one of 
 the parties with whom the contract was made. 
 
 He can, indeed, sue on a bill or note transferable by 
 delivery, which was given to the firm before he became 
 a member of it ; for, in such a case, the plaintiffs sue, not 
 as partners, or as the persons with whom the contract was 
 made, but as being the holders of the bill or note, {c) 
 
 Suppose, again, that a debt is due to the firm of A. & 
 B., and that C. joins them as partner; A., B., and C. may 
 sometimes sue X., the debtor, for the debt due to the old 
 firm of A. & B. But they can do this only when X. has 
 
 (jr) (luidon v. Robson, 2 Camp. 302. Compare Teeil v. Elwortliy, M 
 East, 210. 
 
 (y) Compare Teed v. Elworlhy, 14 East, 210, with Kell v. Nainby, 10 15. & 
 C. 20. 
 
 (?) See in the afTirmative, Collyer, Partnership, 4^)7; in the ne^'niive, I 
 I.indlcy, I'artnership, 2nd ed., 479. Compare Bond v. I'ittard, 3 M. & W. 357. 
 
 (a) See ( hapter XXXIV. 
 
 {b) Wiisford V. Wood, i Esp. 182 ; Oid v. I'orlal, 3 Camp. 239. I Lindley. 
 P»rtnership, 2nd ed., 489, 490. 
 
 (c) Ibid., 4'_)0.
 
 174 PARTIES TO ACTIONS. 
 
 either expressly or by his coiuliict contracted to pay to 
 the new fn m ol" A., B., (S: C. the debt due to the old 
 [153] firm of A. Sl B. A., B., and C, therefore, sue, 
 not in respect of the debt due to A. and B., but in 
 respect of a new contract made with A., B., and C. after 
 C. joined the firm, {d) 
 
 A retired partner or member of an unincorporated com- 
 pany must sue on every contract made whilst he was a 
 partner of the firm or member of the company, {e) 
 
 Exception. — One partner must or may sue alone on con- 
 tracts made with him on behalf of the firm in the same 
 cases in wliich an agent must or may sue on contracts made 
 witii iiim on behalf of his principal. (/) 
 
 Each partner is an agent of his co-partners within the 
 scope of the partnership business. Hence, he must sue 
 alone on contracts made with the firm (his principals) in 
 cases in which an action must be brought in the name of 
 an agent, and can not be brought in the name of a prin- 
 cipal. He must sue alone when he is contracted with by 
 deed in his own name {g) when he is made the party to a 
 bill of exchange, &c., {h) or where the right to sue upon a 
 contract is, by the terms or circumstances of it, expressly 
 restricted to one of several partners, {i) 
 
 A partner, again, may sue alone where a contract is 
 
 made with him in his own name. In this case either the 
 
 partner with whom the contract appears to be made 
 
 [154] may sue as being the party to it, or the whole firm 
 
 {ef) Moore v. Hill, Peake, Add. Cases, 10 ; i Lindley, Partnership, 2nd 
 td., 491. 
 
 (e) Dobbin v. Foster, i C. & K. 323. 
 
 {/) See Rule 17. Exceptions 1-7, ante. 
 
 {g\ Rule 17. Exception i. 
 
 {k) Ibid. Exception 2. Compare, however, as to the dififeience between 
 bills indorsed in blank, on which any holder may sue, and bills specially in- 
 dorsed, on which the persons named as drawers, indorsees, &c., must sue. Law 
 /. Parnell, 29 L. J. 17, C. P. ; 7 C. B., N. S. 2S2 ; Machell v. Kinnear. i Stark- 
 (99; Guidon v. Robson, 2 Camp. 302 ; Bawden v. Howell, 3 M. & G. 6381 
 Phelps V. Lyle, 10 A. & E. 113 ; i Lindley, Pait;iership, 2nd ed., 474. 
 
 (i) Rule 17. Exception 3. Lucas v. De la Cour, i ^L & S. 349. Compare 
 Robson V. Drumniond, 3 B. & Ad. 303 ; Humble v. Huiifer, 12 Q. B. 310 ; i; 
 L. J. 350, Q. B.
 
 PARTNERS AND COMPANIES. 175 
 
 may sue as being the persons really interested in it. 
 (J) The principle, in short, to be kept hrmly in mind 
 is, that each partner being an agent for the firm, the 
 question, whether he must or may sue without joining 
 his co-partners, is in reality nothing but the inquiry, 
 whether an agent must or may sue on a contract made 
 with him on behalf of his principal. 
 
 Set-off. — Debts due from one partner, A., can not be 
 set-ofF against debts due to the firm, A., B., and C, nor 
 can debts due from the firm, A., B., and C, be set-off 
 against debts due to one partner A. {k) 
 
 This principle is subject to exceptions. » 
 
 The first is, that where one partner is or has become 
 {e. g., by the death of his co-partners) the only person 
 capable of suing for a debt due to the firm, the debtor 
 can set-off a debt due, not from the firm, but from the 
 partner individually. A., for example, is the only sur- 
 viving partner of the firm of A., B., and C. ; A., there- 
 fore, has become the only person who can sue for debts due 
 to the firm. (/) X., the debtor, can, in an action by A., set- 
 off debts due to him, not from the firm of A., B., and C, 
 but from A. individually, {m) 
 
 The second is, that if the firm have allowed one of the 
 partners, A., to enter into a contract as if he were the 
 only person with whom the contract was made, X., 
 the other contracting party, may set-off against the [155] 
 debt due to the firm, debts due to him from A. 
 individually. («) {0) 
 
 (j) Skinner v. Stocks, 4 B. & Aid. 437 ; Garrett v. Ilandley. 4 B. & C. 664 ; 
 Cothay v. Fennell, 10 B. & C. 6yi ; Alexander v. Barker, 2 C. & J. 133. See 
 Rule 17. Exception 4. 
 
 {/.-) Owen V. Wilkinson, 5 C. B., N. S., 526; 2S L. J. 3, C. P. A debt due 
 from partners on a joint and several obligation (<». g.. a promissory note), may 
 alw-iys be treated as a debt due from each of ihe partners separately. Hence, 
 if A. bring an action for a debt due to him individually, a debt due from A., 
 B^ and C. on their joint and several promissory note may be set off against A.'s 
 claim. I Lindley, Partnership, 2nd ed., 516, 517. 
 
 (/) See Rule 16, 
 
 (/w) French v. Andrade, 6 T. R. 582 ; Slipper v. Sid>tone, 5 T. R. 493. 
 
 («) Gordon v. Kllis. 2 C. B. 821 ; 15 L. J. 17S, C. P. ; Rama/.otli v. Bowring, 
 7 C. B., N. S., 851. See i Lindley, Partnership, 2nd ed., 514-520 
 
 {o) " If a partner being indebted to a person who is indei)ted to the firm.
 
 176 PARTI HS TO ACTIONS. 
 
 Rule 22. — One partner or member of an unin- 
 corporated company can not sue another upon any 
 matter involving the accounts (/) of the partnership 
 or company. 
 
 The technical ground of this rule is, that, in an action 
 on any matter involving the partnership accounts, all the 
 members of the firm must be either plaintiffs or defend- 
 ants ; and if, therefore, such an action were brought by 
 or against a partner, the same person would appear both 
 as plaintiff and as defendant. If, for example, A. were to 
 sue the firm of A., B., and C, for the price of work and 
 labor done for it, iq) for a. share of the profits, (r) on a bill 
 accepted in the name of the firm, {s) or for money which 
 he had been compelled to pay for the firm, (/) the action 
 would be an action brought by A. against A., B., and C, 
 /. e.^ A. would be both plaintiff and defendant ; and, as 
 already pointed out, {ti) the same person can not occupy 
 at once the position both of plaintiff and of defendant. On 
 the same ground, if A. is a partner in two firms {e. g., A., 
 
 B., & C, and A., X. & Y.), neither firm can sue the 
 [156] other on a contract made between them, ix) nor, 
 
 after A.'s death, can either firm sue the other on a 
 contract made between them whilst he was a partner in 
 both ; (jj/) nor if the firm of A., B., & C. become indebted 
 
 agrees with him that one debt shall be set-off against the other, and the two 
 settle their accounts together on this footing, the firm is bound by this transac- 
 tion, and the debt owing to it is extinguished." Ibid. 517. Wallace v. Kelsall, 
 7 M. & W. 264. 
 
 (/) Smith, Mercantile Law, 7th ed., 34, 35 ; 2 Lindley, Partnership, 2nd 
 ed., 878-883. 
 
 {q) Holmes v. Hic^gins, i B. & C. 74. 
 
 (r) Bovill V. Hammond. 6 B. & C. 149. 
 
 (j) Neale v. Turton, 4 Bing. 149. • . 
 
 (/) Sadler V. Nixon, 5 B. & Ad. 936. 
 
 («) See Rule 5. 
 
 {x) Moffat V. Van Millingen, 2 B. & P. 124 ; Mainwaring v. Newman, Ibid. 
 120. 
 
 {y) 2 Lindley, Partnership, 2nd ed., 883. Bosanquet v. Wray, 6 Taunt. 
 5Q7.
 
 PARTNERS AND COMPANIES. 177 
 
 to M., and M. dies, leaving- A. his executor, can A., 
 even as executor, bring an action for the debt due to 
 M. {z) 
 
 Companies etnpowered to sue. — These companies are 
 merely partnerships endowed with the right of suing and 
 being sued in the name or a public officer. 
 
 If this officer {e. g., the secretary) represents each of 
 the members of the company, he can no more sue a mem- 
 ber than one partner can sue another, since he represents 
 as much the person sued as the person suing, and there- 
 fore would occupy, in an action, the position at once of 
 plaintiff and of defendant, {a) 
 
 Modern Acts of Parliament generally make the officer 
 the representative of the company, as distinguished from 
 its members. Where this is done, legal proceedings 
 between the public officer and individual members are as 
 unobjectionable as proceedings between incorporated 
 companies and their shareholders, {b) 
 
 There is, however, great difficulty m tne way of an 
 action by a shareholder against an unmcorporated com- 
 pany, at any rate, for declared dividends ; since, " even 
 if the company be empowered to sue and be sued 
 by a public officer, and an action by a shareholder [157] 
 against him for a dividend declared and payable 
 might possibly lie, there would be very great not to say 
 insuperable difficulties in executing a judgment obtained 
 by the plaintiff in such an action." {c) 
 
 The rule, it must be remembered, has no application 
 
 (2) Moffat V. Van Millingen, 2 B. & P. 124. The rule applies to persons 
 who are partners in a particular venture. 
 
 {a) 2 I-indley, Partnership, 2nd ed., 858. Hichens v. Congreve, 4 Russ. 
 562 ; McMahon v. Upton, 2 Sim. 473 ; Hughes v. Thorpe, 5 M. & W. 656. 
 
 (i>) 2 Lindley, Partnership, 2nd ed., 858. Wills v. Sutherland, 4 Ex. 211 ; 
 18 L. J. 450, Ex. ; 5 Ex. q8o; 20 L. J. 28 Ex. (Ex. Ch.) ; Reddish v. Pinncck, 
 10 Ex. 213 ; Smith v. Goldsworthy, 4 Q. IJ. 430; 11 L. J. 151, Q. H. ; Chapman 
 V. Milvam, 5 Ex. 6r ; 19 L. J. 228, Ex. It is settled that one public oflicer of 
 a banking company under 7 (Jeo. 4, c. 4f, is the proper person to sue a sliare- 
 holder for calls. 2 Lindley, Partnership, 2!id ed., 858. 
 
 (<•) 2 Lindley, Partnership, 2nd fd.,888, 889. The difficulty as to executin;^ 
 the judgment seems to apply to ail actions against an unincorporated company 
 by a shareholder. 
 12
 
 178 PARTIES TO ACTIONS 
 
 to actions by one partner against another, in respect of 
 matters unconnected with the partnership business, {d) 
 
 The rule, again, has no application to persons who are 
 not actually partners. 
 
 Hence, actions are constantly brought on agreements 
 for partnership. If, for example, the member of a firm 
 agrees to introduce a stranger, an action lies for a breacu 
 of the contract, {e) 
 
 Exception i. — Where there is an agreement which, though 
 relating to partnership business, can be treated as separate 
 and distinct from other matters in question between the 
 partners. 
 
 Under this exception, which includes many different 
 cases, a partner may often sue his fellow-partners. 
 
 Thus an action can be brought by one partner against 
 another for the breach of a covenant or express agreement 
 entered into by his co-partner, not by the firm, with him. 
 {/) He can, again, maintain an action against his co- 
 partners for the non-performance of a written agreement 
 to render accounts and divide profits, {g) for rent cov- 
 enanted to be paid, (//) or for not indemnifying him against 
 a debt, (z) and he can often sue his co-partners on a bill 
 
 of exchange. 
 [158] If a bill or note is given to A. by his partners, 
 
 B. and C, in such a form as not to bind the firm, 
 but to bind B. and C, A. can sue them on the bill, even 
 though it had reference to a partnership transaction ; for 
 A. is a':knowledged by the bill to have a claim against B. 
 and C. independent of any claim which they have against 
 
 {(1) 2 Lindiey, Partnership, 2nd ed., 873, 875. 
 
 {e) McNeill v. Reid, 9 Bing. 68 ; Gale v. Leckie, 2 Stark. 107 , Andrews v. 
 Garstin, lo C. B., N. S., 444 ; 31 L. J. 15, C. P. Compare Lindiey, Partner- 
 ship, 2nd ed., 863, 864. 
 
 (/) See Lir lley, Partnership, 2nd ed., 869, 870; BuUcn, Pleadings, 3rd 
 ed., 229. 
 
 {g) Owston V. Ogle, 13 East, 538. 
 
 (h) Bedford v. Brutton, i B. N. C. 399. 
 
 (f) Want V. Reece, i Bing. 18 ; 2 Lindiey, Partnership, 2nd ed., 870.
 
 PARTNERS AND COMPANIES. 179 
 
 him ; {k) but if a bill is accepted in such a manner as to 
 bind the firm, a partner can not sue his co-partners upon 
 it. (/) 
 
 A partner further can sue his co-partner for a breach 
 of a contract to furnish capital, (m) or for not contributing 
 the share which he had agreed to contribute to the 
 partnership expenses, (;/) and can bring an action against 
 his fellow-partners, where the partnership has been dis- 
 solved, and it has been agreed that they should take his 
 share of the partnership property at a certain value, for 
 t/ie amount of the valuation ; {o) for a final balance struck 
 ifter a statement of accounts ; {p) for money received to 
 nis use, {q) or for money of his own placed in their hands 
 for a specified partnership purpose, and no other, and 
 misapplied, (r) So, he can sue them on an agreement to 
 indemnify him in respect of some particular transaction, 
 (j) and for contribution in respect of a particular loss. (/) 
 
 Exception 2. — Where the matters in respect of which [159J 
 an action is brought are connected with the partnership 
 business only through the wrongful act of the partner sued, {u) 
 
 Where one partner received money to the use of an- 
 other and paid it to the firm, it was held that he might be 
 sued, for he was bound to hand the money over to his 
 
 {k) Neale v. Turton. 4 Bing. 149, Esp., judgment of Best, C. J., 151 ; Hcy- 
 wood V. Watson, 4 Bing. 496; Beecham v. Smith, E. B. & E. 4^2 ; 27 L. J. 
 257. Q. B., E^p., judgment cif Crompton, J., 260. 
 
 (/) Neale v. Turton, 4 Bing. 149, 15 1 ; Moffat v. Van Millingen, 2 B. & P. 
 124. Byles, Bills, Sih ed., 38, 39. 
 
 (w) llesketh v. Blanchard, 4 East, 144. 
 
 («) Brown v. Tapscoit, 6 M. & W. 119; French v. Styring, 2 C. B., N. S, 
 357 ; 26 L. J. 181, C. P., Esp., judgment of Cockburn, C. J. ; 2 C. B., N. S., 
 364, 365 ; 26 L. J. 183, C. P. ; Elgie v. Webster, 5 M. & W. 518. 
 
 (0) Jackson v. Stopherd, Cr. & M. 361. 
 
 (/ ) Moravia v. Levy, 2 T. R. 483 ; Foster v. Allanson; 2 T. R. 479. 
 
 ( (/) Graham v. Robertson, 2 T. R. 282. 
 
 (r) Wright v. Hunter, I East, 20. 
 
 (s) Coffee V. Briat), 3 Bing. 54. 
 
 (/) Sedgwick v. Daniell. 2 H. & N. 319; 27 L. J- I'^J. Ex. For cases in 
 which partner may sue his fellow-partner, see 2 Lindley, Partnership, 2nd ed.. 
 868-876. 
 
 («) 2 Lindley, Partnership, 2nd cd., 873.
 
 iSo PARTIES TO ACTIONS. 
 
 co-partner: (.r) and so where a partner, in fraud of his 
 co-partnors, gave a note in the name of the firm for a 
 private debt of his own. and his co-partners were com- 
 pelled to pay the note, he was held liable to them for all 
 which they had been compelled to pay ; (j/) since, " if a 
 person who owes a debt to A., b}' any contrivance causes 
 B. to pay it, the action for money paid will lie to recover 
 back the amount, and the machinery by which the mischief 
 was brought about is utterly immaterial." {z) 
 
 Rule 23. — Actions for breaches of contracts 
 made with a firm must be brought : — 
 
 1. On the bankruptcy of the firm, by the trustee 
 («) or trustees of the bankrupts, {b) 
 
 2. On the bankruptcy of one or more partners, by 
 the solvent partners, together with the trustee, or 
 trustees of the bankrupt partner or partners. 
 
 The expression " bankruptcy of a firm " means 
 [160] nothing more than the bankruptcy of all the per- 
 sons who make up the firm. 
 
 If all the partners, A., B., and C, are bankrupt, any 
 action which but for the bankruptcy would have been 
 brought in their names, and therefore, any action on a 
 contract v.ith the firm, must be brought by the trustee 
 or trustees of the bankrupts. 
 
 The propertv of the different bankrupts will generally, 
 under the Bankruptcy Act, 1869, {c) vest in the same 
 
 (jr) Smith v. Barrow, 2 T. R. ^76. 
 
 ( )') Cross V. C;iieshire, 7 Excli. 43 ; 21 I,. ]. 3, Ex. 
 
 (z) Ibid., per PoLLOCK, C. B. Conf. llailbut v. Nevill, L. R. 4, C. P. 
 
 354- 
 
 {a) The term "'the trii>tee " is suhstiiuled by the Bankruptcy Act, l86g, 
 for the expression " assi;;nee in bankruptcy." Whenever a trustee in bank- 
 ruptcy is referred to, he is, to distinguisli liim from an ordinary trustee, described 
 as the trustee. 
 
 (b) Partners, like other persons, can, of course, after bankruptcy, bring 
 actions in which they sue merely as trustees for other people. See Chapter 
 IX., post. 
 
 (c\ 32 & 33 Vict. c. 71, s. 102.
 
 PARTNERS AND COMPANIES. i8i 
 
 trustee ; but if a separate trustee should be appointed for 
 each of the partners, all the trustees must join in an action 
 on contracts with the partnership, {d) 
 
 The effect of the bankruptcy of one partner is to 
 dissolve the firm, both as regards the bankrupt and as 
 regards the partners inter se, and to make the trustee a 
 tenant in common (not a co-partner) with the solvent 
 partner of all the partnership property, {e) Hence any 
 action which but for the bankruptcy of one of the part- 
 ners, C, would have been brought by A., B., and C, 
 must after his bankruptcy be brought in the names of 
 A. and B., the solvent partners, and the trustee of the 
 bankrupt C. (/) It should further be noticed that owing 
 to the legal fiction by which the title of the trustee dates, 
 not from the time of C.'s being adjudicated a bankrupt, 
 but from the time of the commission of an act ot bank- 
 ruptcy, {g) it may happen that A., B., and the trustee, 
 can bring an action where A., B., and C. could not have 
 sued. (//) 
 
 The Bankruptcy Act, 1869, enables the trustee, sub- 
 ject to certain conditions, to use the names of the solvent 
 partners if they are unwilling to bring an action. 
 {i) If, on the other hand, the trustee declines to [161] 
 join in an action, the solvent partners may use his 
 name upon indemnifying him. (k) 
 
 Unincorporated Companies. — If a company which is em- 
 powered to sue, &c., is being wound up, actions may be 
 brought in the name of the officer empowered to sue. If 
 a company not empowered to sue, &c,, is being wound up, 
 it will probably be registered for that purpose under the 
 Companies Act, 1862. (/) In this case an action may be 
 
 (d) Hancock v. Haywood, 3 T. R. 433, 435. 
 
 {e) 2 Lindley, Partnership, 2nd ed., 1100, IIOI, II18, II19. 
 
 (/) Eckhardt v. Wilson, 8 T. R. 140; Thomason v. Frere, lO East, 41S; 
 Gr iham v. Robertson, 2 T. R. 282. 
 
 (.^) Bankruptcy Act, 1869, s. 11. 
 
 (//) Heilhut V. Nevill, L. R. 4, C. P. 354. 
 
 (0 32 & 33 Vict. c. 71, s. 105. 
 
 (k) Whitehead v. Hughes, 2 D. P. C. 258 ; 2 Limlk-y, Partnership, 2nd ed, 
 II (9. 
 
 {/) Companies Act, 1862, s. 180; 2 Lindley, Partnership, 2nd ed. I2iq.
 
 1 82 PARTIES TO ACTIONS. 
 
 brought either in the name of the official liquidator or m 
 such other name as the court may direct. (;;/) 
 
 " The doctrine that by the bankruptcy of one member 
 of a firm the whole firm is dissolved, is not, it seems, 
 applicable to mining partnerships ; (;/) and although the 
 bankruptcy ol a shareholder in an unincorporated com- 
 pany with transferable shares may dissolve the company 
 as to him, [o) it is conceived that such bankruptcy does 
 not dissolve it as to the other shareholders in ter se ; " (/) 
 and though the trustee becomes, on the bankruptcy of a 
 shareholder, entitled to his shares, he does not become by 
 the mere bankruptcy a shareholder, (g) 
 
 It would seem that on the bankruptcy of a member of 
 an unincorporated company, provided it be one not em- 
 powered to sue by an officer, actions on contracts made 
 before the bankruptcy should be brought in the name of 
 the solvent members and of the trustee, {r) 
 
 [162] Rule 24. — On the death of a partner, the 
 
 surviving partners and ultimately the last sur- 
 vivor, or his representative, must sue on contracts 
 made with the firm. 
 
 A., B., and C, are partners, C. dies, an action on any 
 contract made with the firm, i. e., with A., B., and C, 
 must be brought by A. and B., and the representatives 
 of C. can not join, [s) 
 
 The same rule appears to hold good with regard to 
 unincorporated companies, supposing of course that these 
 companies are not empowered to sue by a public officer. 
 
 (w) Companies Act, 1862, s. 203 ; 2 Lindley, Partnership, 2n(l ed., 1274, 
 
 t275- 
 
 (w) Ex parte Broadbent, i Mont. & A. 638. 
 
 (0) Greenshield's Case, 2 De. G. & S. 559. 
 {f>) 2 Lindley, Partnership, 2nd ed., iioi. 
 
 (t/) Ibid, Conf. Bankruptcy Act, 1869, s. 23. 
 
 (r) But see Baii'kruptcy Act, 1869, s. 23. 
 
 (j) See Rule 16.
 
 INCORPORATED BODIES. 183 
 
 CHAPTER VII. 
 
 CORPORATIONS AND INCORPORATED BODIES. 
 
 Rule 25. — A corporation or incorporated body 
 must sue in its corporate name. 
 
 A corporation is a fictitious person, created by law, 
 and endowed with a capacity to acquire rights and incur 
 obligations as a means to the end for the attainment of 
 which the corporation is created. It may, and generally 
 does, consist of a number of individual members, but the 
 rights and obligations of these individuals are not the 
 same as the rights and obligations of the corporate 
 body, ia) The fundamental distinction, therefore, be- 
 tween a partnership and a corporation or company is, 
 that while the firm of M. and Co. is nothing but A., B., 
 and C. who compose the firm, a corporation — e. g., the 
 Royal Miners' Co. (Limited), — is totally distinct from 
 A., B., and C, the members of the company. It follows, 
 that while a firm must sue in the names of the individual 
 members, a corporation or company must sue in its 
 corporate name, {b) It is an illustration of the true 
 character of a corporation that, its existence is unaffected 
 by the retirement, death, &c., of the individual members 
 of it, and that a corporation can sue and be sued by its 
 own members. 
 
 O) Even in the case of a corporation sole, e. g., a bishop, the rights of ihr 
 corporation are distinct from the rights of the person who constitutes the cor- 
 poration. : Lindiey, Partnership, 2nd ed., 4. Hradshaw v. Hank of Upper 
 Canada, L. R. i, P. C. 479 ; Metropolitan Saloon Co. v. Hawkins, 2S L. J. 201, 
 Ex.; 4 II. & N. 87. 
 
 {b) 2 Lindiey, Partnership, 2nd ed., 888.
 
 1 84 PARTliLS TO ACTIONS. 
 
 [164J Ru LK 26. — A corporation, or incorporated 
 
 body, can not sue on a contract not under seal, (f) 
 
 A corporation can not sue on any contract not under 
 seal, because a corporation can not, as a general rule 
 (subject, however, to exceptions which have now grown 
 larger than the rule itself), id) enter into any contract, 
 binding either upon the other party to the agreement 
 or upon the corporation, except under its corporate 
 seal. 
 
 " The rule of law requiring contracts entered into by 
 corporations to be generally entered into under seal and 
 not by parol, appears to be one by no means of a merely 
 
 technical character The seal is required as 
 
 authenticating the concurrence of the whole body corpor- 
 ate, .... either a seal or some substitute for a seal, 
 which by law shall be taken as conclusively evidencing 
 the sense of the whole body corporate, is a necessity in- 
 herent in the very nature of a corporation." {e) 
 
 Hence, an agreement to supply a mining company 
 with n-on bars, (/) a contract with a water company to 
 supply iron pipes, (^) an engagement by a corporation to 
 pay an increased salary to a town clerk, (//) to pay for 
 work done in building a workhouse, (?) and many other 
 agreements by corporations {k) have been held invalid, be- 
 cause not made under seal. 
 
 [165 J Exception i. — Where a corporation enters into a 
 
 (f) Bacon, Abr., Corporations, E. 3. 
 
 {d) South of Ireland Coll. Co. v. Waddle, L. R. 3, C. P. 474, judgment <A 
 Montague Smith, J. 
 
 (<f) Mayor of Ludlow v. Charlton, 6 M. & W. 823, judgment of RoLKE, B. 
 See also Arnold v. Mayor of Poole, 4 M. & G. 860 ; 12 L. J. 97, C. P. 
 
 (/) Copper Miners' Co. v. Fox, 16 Q. B. 229 ; 20 I>. J. 174, Q. B. 
 
 {g) East London Water Works Co. v. Bailey, 4 Bing. 283. 
 
 {h) R. V. Mayor of Stamford, 6 Q. B. 433. 
 
 (?") Lamprell v. Billericay Union, 3 Ex. 283 ; 18 L. J. 282, Ex. 
 
 (k) Paine v. Strand Union, 8 Q. B. 326 ; Arnold v. Mayor of Pcnle, 4 M. & 
 G. 860 ; Diggle v. London and Blackvvall Rail. Co., 5 Ex. 442 ; 19 L. J 
 303. Ex.
 
 INCORPORATED BODIES. 185 
 
 contract concerning matters necessarily incidental to the pur- 
 poses of the business of the corporation. 
 
 A corporation can sue (/) on contracts relatnig to 
 matters of the corporation, since, " it is now perfectly 
 established by a series of authorities that a corporation 
 may with respect to those matters for which they are 
 expressly created, deal without seal. This principle is 
 founded on justice and public convenience, and is in 
 accordance with common sense." {iri) This exception, 
 though specially applicable to bodies constituted for the 
 sake of trade, {n) and though it has been considerably 
 extended in order to meet their convenience, {p) appears, 
 in principle, to apply to all corporations. 
 
 It is often difficult to decide whether a given contract 
 falls within the rule or the exception. A contract, for 
 example, with a company incorporated for the working 
 of collieries to supply them with a pumping-engine has 
 been held valid, though not under seal. (/>) So has an 
 agreement to supply a steamboat company with pro- 
 visions, {q) and an agreement by the same company for 
 the carriage of a passenger, if) Again, on the same 
 principle, an agreement by a telegraphic company [166] 
 to pay a commission to an agent on messages ob- 
 
 il) A corporation's right to sue is, subject to very slight exceptions, strictly 
 correlative to its liability to be sued, /. e., it can be sued on contracts on which 
 it can sue, and vice versa/ and can not be sued on contracts on which it can 
 not sue, and vice versa. It is, therefore, convenient to introduce, as exemplifi- 
 cations of the general rule, and the exceptions to it, cases which directly refer 
 only to a corporation's liability to be sued. 
 
 (/«) Australian Royal Mail Co. v. Marzetti, ri Exch. 234; ]ier Pollock, 
 C. B. 
 
 («) Clarke v. Cuckfield Union, i Bail. C. C. 86, judgmeil of Wir.ifT- 
 MAN, I. 
 
 (o) Henderson v. Australian Royal Mail Co., 5 E. & B. 400 , 24 I-. J. 322, 
 <2. B. : South of Ireland Colliery Co. v. Waddle, L. R. 3, C. V. 474, judgment 
 of MoNTAouK Smith, J. 
 
 (p) South of Ireland Colliery Co. v. Waddle, L. R. 3, C. P. 463. 37 L. J. 
 211, C. P. 
 
 (q) .\uslralian Royal Mail Co. v. Marzetti, II Exch. 223; 24 L. J. 
 273, Ex. 
 
 ir) Henderson v. Australian Royal Mail Co., 5 E. & B. 409; 24 L. J. 32'» 
 
 Q. n.
 
 1 86 PARTIES TO ACTIONS. 
 
 tained for the company, {/) by a gas company to supply 
 gas, (/) for guardians to pay for goods supplied, {tc) or for 
 work done, {x) have been held valid, though not made by 
 deed. But with these cases should be contrasted othei^s 
 (some of which have been already mentioned), such as the 
 Copper Miners' Co. v. Fox, [y) where a contract, that the 
 defendant would supply the plaintiff with iron rails, was 
 held not valid, because it was not under seal, and had 
 not reference to matters necessarily incidental to the 
 business of the company. " Had the subject-matter of 
 this coniract been copper, or if it had been shown in any 
 way to be incidental or ancillary to the business of 
 copper miners, the contract would have been binding, 
 although not under seal ; for where a trading company 
 is created by charter, while acting within the scope of 
 that charter, it may enter into the commercial contracts 
 usual in such a business in the usual manner. But the 
 iron rails, the subject-matter of this contract, were not 
 shown to have any connection with the business of copper 
 miners." {z) And similar to the Copper Miners' Co. v. 
 Fox is the London Dock Co. v. Sinnot, {a) in which it 
 was held, that a contract with the London Dock Co. (a 
 corporation constituted for the purpose of carrying on a 
 particular trade), for cleansing and removing the filth 
 accumulating in their docks, was invalid, because not 
 under seal. The decision in this latter case is, however, 
 open to some doubt, {b) 
 
 [167 j Exception 2. — Where the contract relates to acts of 
 
 trivial importance or of constant recurrence. 
 
 A corporation may sue on contracts not under seal 
 which refer to matters of trivial importance, of frequent 
 
 (j) Reuter v. Electric Telegraph Co., 26 L. J. 46, Q. B. ; 6 E. & B. 341. 
 (/) Church V. Imperial Gas Co., 6 A. & E. 846. 
 («) Sandars v. St. Neot's Union, 8 Q. B. 810. 
 
 (x) Haigh V. North Bierly Union, 28 L. J. 52, Q. B. ; E. B. & E. 873 
 Nicholson v. Bradfield Union, L. R. i, Q. B. 620; 35 L. J. 176, Q. B. 
 iy) 16 Q. B. 229 ; 20 L. J. 174, Q. B. 
 
 (z) Copper Miners' Co. v. Fox, 20 L. J- 177. Q- B., per Curiam. 
 la) 27 L. ;, 129, Q. B. ; 8 E. & B. 347. 
 {b) South of Ireland Colliery Co. v. Waddle, L R. 3, C. P., 463, 471.
 
 INCORPORATED BODIES. 187 
 
 occurrence, or of immediate urgency ; so that the making 
 these contracts in the usual way with the authentication 
 of the corporate seal would be inconvenient and ab- 
 surd, {c) e. g., agreement for the supply of coals, {d) or 
 of gas. {e) It has, however, been doubted, whether any- 
 thing really turns upon the importance or the frequency 
 of the matters to which a contract relates, (/) and this 
 exception must, therefore, it would appear, be looked 
 upon simply as an extension of the first exception. 
 
 Exception 3.— Where the consideration {g) for the contract 
 IS executed on the part of the corporation. 
 
 " Whatever may be the consequences where the agree- 
 ment is entirely executory on the part of the corporation, 
 yet if the contract instead of being executory is executed 
 on their part, if the persons who are parties to the 
 contract have received the benefit of the consideration 
 moving from the corporation, (//) in that case, . . ^ 
 both upon principle and decided autl^orities, the other 
 parties are bound by the contract and liable to be sued 
 thereon by the corporation." {%) 
 
 This exception is less firmly established than the 
 others, {k) and has no application to actions against [168] 
 corporations. (/) 
 
 (<:) Diggle v. London and Blackwall Rail. Co., 5 Exch. 450, judgment of 
 Alderso.n', B. 
 
 'd) Nicholson v. Bradfield Union, L. R. i, Q. B. 620; 35 L. J. 176, Q. B. 
 
 (<f) Beverley v. Lincoln Gas Co., 6 A. & E. 829. 
 
 (/) South of Ireland Colliery Co. v. Waddle, L. R. 3, C. P. 470, judgment 
 of BoviLL, C. J. See Henderson v. Australian Royal Mail Co., 24 L. J. 326, 
 judgment of Erle, J. 
 
 {g) See Diggle v. London and Blackwall Rail Co., 5 Exch. 442, 451 ; 19 L 
 J. 308, 311, Ex. 
 
 {h) .See ante. 
 
 («■) Fishmongers' Co. v. Robertson, 5 M. & G. 192, per CURIAM. Compare 
 London Water Works Co. v. Bailey, 4 Bing. 283, 287 ; Leake, Contracts, 
 
 257- 
 
 {/{•) Australian Royal Mail Cn. v. Mnrzctti. 11 Ex. 228 ; 2\ L. J. 273, Ex. ; 
 South of Ireland Colliery Co. v. Waddle, L. R. 3. (^- ^- 4f'3- 
 
 (0 I Lindley, Partnership, 2nd ed.. 306. Mayor of Ludlow v. Charlton, 6 
 M. & W. 815 : Lamprell v. Billcricay Union. 3 Ex. 283 ; 18 L. J. 282, Ex. 
 Leake, Coniracis, 256, 257. P>iit conf. lUoom. Com.. 2nd cd., 553.
 
 1 88 PARTIES TO ACTIONS. 
 
 Exception 4. — Where there is a contract implied bylaw. 
 
 Where a contract is implied by law. a corporation may 
 sue. though there exists no agreement under seal as a 
 basis of the action. The ground ot this exception is, it 
 is conceived, that the basis of the action is not in reaHty 
 a contract, but the existence of circumstances which in 
 the view of the law give the plaintiff a right to sue as it 
 there were a contract between him and the defendant, {in) 
 Hence a corporation may maintain an action to recover 
 reasonable satisfaction for the use and occupation of 
 land, held and occupied by the permission of the corpora- 
 tion without a demise under seal ; {n) and on the same 
 principle a corporation may, it is conceived, frequently 
 support an action for money had and received, though 
 there may have been no contract between the corporation 
 and the defendant, {o) 
 
 Exception 5. — Where a corporation is authorized by statute 
 to contract otherwise than under seal. 
 
 Companies are in many cases, e. g., under the Metrop- 
 olis Gas Act, i860, (/) the Companies Clauses Act, 
 1845, {4) the Companies Acts, 1856, (r) and 1867, is) 
 authorized to contract otherwise than by deed, and [169J 
 can of course sue on contracts made in the man- 
 ner directed by statute. 
 
 Rule 27. — A corporation or incorporated body 
 can not sue on contracts ultra vires. {£) 
 
 (in) See ante. 
 
 (w) Dean of Rochester v. Pierce, r Camp. 466 ; Marquis of Stafford v. Till, 
 4 Bing. 75, 77. In this case, however, there may fairly be considered to be a 
 real though tacit contract between the parties. 
 
 (d) Conf. Hall v. Mayor of Swansea, 5 Q. B. 526. Jefferys v. Gurr, 2 B. & 
 Aid. 833. 
 
 (/) 23 & 24 Vict. c. 125, s. 20. 
 
 (,q) 8 & 9 Vict. c. 16, s. 95. 
 
 (r) 19 & 20 Vict. c. 47, s. 41. 
 
 (j) 30 & 31 Vict. c. 131, s. 37. 
 
 (/) Taylor V. Chichester Rail. Co., L. R. 2, Ex. 379, judgment of Bi.ACKBUR!*
 
 INCORPORATED BODIES. 189 
 
 Rule 28. — When an incorporated company is in 
 the course of winding-up, actions on behalf of such 
 company are brought and continued in its corporate 
 name by the official liquidator. (7^) ^ 
 
 Companies can not be made bankrupt, {v) but are 
 wound up under the provisions of the Companies Act, 
 [862. 
 
 A registered company under the Companies Acts, 
 1857, 1858, and 1862, sues in the same way as far as form 
 is concerned when in the course of winding up as before 
 the winding up commenced, {x) i. e., actions are brought 
 and continued in the corporate name of the company, {y) 
 
 Set-off. — In an action for calls, brought by a limited 
 company being voluntarily wound up under the Compa- 
 nies Act, 1862, against a contributor, the defendant may 
 set-off a debt due to him from the company, {z) But 
 [170] where a limited company is being wound up by the 
 court or under the supervision of the court, the de- 
 fendant in an action for calls can not set-off debts due to 
 him from the company, {a) 
 
 J. The reader is referred for the explanation to this rule to tlie analogous rule 
 with regard to actions against companies. Chapter XIV. 
 
 [u) Companies Ac":, 1862, ss. 94, 95. 2 Lindley, Partnership, 2nd ed., 1274- 
 1278, and Companies Act, 1862, s. 203. The companies referred to in this 
 Chapter are, it should be remembered, incorporated companies. 
 
 iv) See Bankruptcy Act, 1S69, s. 5. 
 
 (x) 2 Lindley, Partnership, 2nd ed., 1274. See aitte. 
 
 {)') See ante. 
 
 (z) Brighton Arcade Co. v. Bowling, L. R. 3, C. P. 175 ; 37 I- J- 427. 
 C. P. 
 
 (a) Brighton Arcade Co. v. Dowling, L. R 3, C. P. 175 ; 37 L. J. 427. C. P. 
 Grissell's Case, L. R. i, Cli. App. 52S. 
 
 I. A receiver should sue in the Kent, 70 Ind. 429; Dc Wolf v. 
 
 name of the party in whom the Spragiie's M'f'g Co., 11 R. I. 38; 
 
 right of action existed when he was Haxtum v. liishop, 3 Wend. 16; 
 
 appointed, when there is nothing to Porter v. Williams, 9 N. Y. 147; 
 
 the contrary in the statute or in the Singerly v. Fox, 75 Pa. St. 1 14. 
 order appointing him. G.irver v.
 
 £90 PARTIES TO ACTIONS. 
 
 CHAPTER VIII. 
 
 HUSBAND AND WIFE. 
 
 Rule 29. — A wife can not during coverture 5ue 
 without her husband.' 
 
 A wife is in the eye of the law for some purposes one 
 person with her husband, {a) She is therefore incapable 
 of bringing- an action at law to obtain redress for an injury 
 sustained in respect of her person or property, unless the 
 action be brought with her husband's concurrence, and 
 in his name as well as her own. {b) 
 
 Right of zvife to use Jmsband' s name. — As a married 
 woman can never sue alone, the courts, to a limited 
 extent, protect her in the use of her husband's name with- 
 out his authority. Where a wife sued as executrix in her 
 own name and that of her husband without his authority, 
 
 (<;) Coke, Lilt., \\2a ; 2 Steph., Com., 6th ed., 2S1, 2S2. The Queen, 
 
 whether regnant or cor.sort, is considered a feme sole. Ibid., 283. 
 
 {h) Ibid., 289. Eubanke v. Owen, 5 A. & E. 298 ; Ayling v. Whicher, 6 A 
 & E. 259. 
 
 I, Bien v. Heath, 6 How. 239; McArth.65. But as to those arising 
 
 Bradley v. Emerson, 7 Vt. 370; after coverture the husband sues 
 
 Ward V. Ward, 2 Dev. Eq. 554; alone. Story v. Baird, 14 N. J, L. 
 
 Stephens v. Porter, il Heisk, 342; 268; Bratton v. Mitchell, 7 Watts, 
 
 Belouquet v. Lanata, 13 La. Ann, 115; Little v. Keyes, 24 Vt. 121; 
 
 3. When the right of action arose Fightmaster v. Beasley, i J. J. 
 
 before coverture, the husband and Marsh 606; Carswell v. Schley, 50 
 
 wife must be joined in the action. Ga. 22; Barrett v, Tewksbury, 18 
 
 Story V. Baird, 14 N. J. L. 268 ; Gal. 336. 
 
 Bratton v. Mitchell, 7 Watts, 115; Where the promise was to the wife 
 
 Neagle v. Hensley, 5 J. J. Marsh, while sole, she must join in an action 
 
 378; Armstrong v. Simonton, 2 upon it. Morse v. Earl, 13 Wend. 
 
 Murph. 352; Gibson v. Gibson, 43 272 ; Brown v, Fitz, 13 N. H. 286; 
 
 Wis. 24; Bell v. Allen, 53 Ala. Tuttle v. Fowler, 22 Conn. 63; Bond 
 
 125 ; Kimbro v. First Nat, Bank, i v. Baldwin, Coxe, 216,
 
 HUSBAND AND WIFE. 191 
 
 the court refused to stay proceedings absolutely, but 
 stayed them until security was given to the husband 
 against the costs of the action, {c) Where a wife living 
 apart and formally separated from her husband, brought 
 an action of trespass in her own name and in that of 
 her husband, the court refused to stay proceedings on 
 the mere ground of the action being brought without his 
 consent, {d') But even when the wife sues as execu- 
 trix, {e) the husband has the power to release or [172] 
 settle the action. (/) 
 
 Exception i. — Where the husband is civilly dead. 
 
 A wife can sue alone when her husband is civilly dead, 
 either permanently or for a time, e. g., by imprisonment 
 or transportation, {g) 
 
 Her right to sue alone ceases with the cessation of her 
 husband's civil death, e. g., by the termination of his 
 punishment. If he has been transported, and does not 
 return after the end of his punishment, his wife, it seems, 
 can sue alone, on the ground of his having abjured the 
 realm, {h) 
 
 A man's being an alien enemy is not a ground on which 
 his wife can sue in her own name. (/) " Whether it is to 
 be assumed that the contract was entered into before or 
 after marriage, the husband ought to be joined, and it is 
 no answer to say that he is an alien enemy, and therefore 
 can not sue. It may be a hard case, but the hardship is 
 not so great as it at first seems, because the rights of the 
 alien enemy being forfeited to the Crown, it is in the 
 power, and it may be the duty, of the Crown to enforce 
 
 (f) Proctor V. 15rotlierton, 23 I>. J. 116, Ex. ; 9 Exch. 4S6 
 (</) Chamliers v. Donaldson, 9 East, 470. 
 
 (e) 2 Williams, Executors, 6th ed., 904. 
 
 (/) Ciiambers v. I)onal<l.-,on, 9 East, 470. 
 
 Perhaps, in a case of clear hardship, the court might interfere by preventing 
 ihe release from being pleaded (Innell v. Newman, 4 B. i*^ Ad. 419), or possibly 
 by allowing a replication setting forth the facts. As to co-plaintiffs, utile. 
 
 (g) Belknap's Case, Coke. Litt., 133^, i2,2,b ; Jewson v. Read, Loft. 142. 
 See anU. 
 
 (k) Carroll v. Blencowe, 4 Esp. 27. 
 
 (0 De Wahl v. Braune. i H. & N. 178 ; 25 L. J. 343, Ex.
 
 192 PARTIES TO ACTIONS. 
 
 its rig-hts b}' inquisition, and take possession of the hus- 
 band's property and right, and then use those rights 
 jointly with and tor the benefit of the wife." {k) 
 
 Exception 2. — Where the husband is legally presumed to 
 be dead. 
 
 A wife can sue alone where her husband is pre- 
 
 [173] sumed in law to be dead. This presumption arises 
 
 after a lapse of seven years, if he has gone abroad 
 
 and absented himself, and no account can be given of him 
 
 during his absence. (/) 
 
 Exception 3. — Where a wife has a "judicial separation " or 
 "protection order" under 20 & 21 Vict. cap. 85, ss. 26 and 21. 
 
 " In every case of a judicial separation, the wife shall, 
 whilst so separated, be considered as a feme sole for the 
 purposes of contract, and wrongs, and injuries, and suing 
 and being sued in any civil proceeding ; and her husband 
 shall not be liable in respect of any engagement or con- 
 tract she may have entered into, or for any wrongful act 
 or omission by her, or for any costs she may incur as 
 plaintiff or defendant, provided, that where upon any 
 such judicial separation alimony has been decreed or 
 ordered to be paid to the wife, and the same shall not be 
 duly paid by the husband, he shall be liable for neces- 
 saries supplied for her use ; provided also that nothing 
 shall prevent the wife from joining, at any time during 
 such separation, in the exercise of any joint power given 
 to herself and her husband." {m) 
 
 The protection order places the wife " in the like posi- 
 tion in all respects with regard to property and contracts, 
 and suing and being sued, as she would be under (20 & 
 21 Vict. cap. 85), if she obtains a decree of judicial sepa- 
 ration." {n) 
 
 ik) Ibid., 344, Ex., judgment of Pollock, C. B. The wife of an alien 
 enemy may, however, be sued alone, see Chapter XVI. 
 (/) Hopewell v. De Pinna, 2 Camp. 113. 
 (w) 20 & 21 Vict. c. 85, s. 26. 
 (■«) Ibid., s. 21.
 
 HUSBAND AND WIFE. 193 
 
 But though an order protects the property acquired 
 by her since the commencement of the desertion, it does 
 not entitle her to continue an action commenced before 
 the order was made ; {o) and it may be doubtful whether 
 after the order, she can sue for causes of action which 
 were complete before the order was made. (/>) 
 
 SUBORDINATE RULE. 
 
 A husband can not bring an action against his wife, or a wife 
 against her husband. 
 
 This subordinate rule follows immediately from the 
 fact, ihat a wife can neither be sued {q) nor sue without 
 joining her husband. 
 
 A husband may, however, enter mto a contract with a 
 third person as trustee for his wife, and such trustee may 
 bring an action against him. (r) 
 
 Rule 30. — A husband and wife must sue jointly in 
 two {s) cases, sc. 
 
 1. On contracts made by the wife before marriage : 
 
 2. On contracts in which the wife claims as exec- 
 utrix, or administratrix.^ 
 
 {p) Midland Rail. Co. v. Pye. ro C. B., N, S., 179 ; 3^ L. J. 314. C. P. 
 
 (/) See, however, Johnson v. Lander, L. R. 7 Eq. 228. 
 
 {q) See Rule 5 and Chapter XVL 
 
 (») 2 Steph., Com., 6lh ed., 282. 
 
 (.() A husband and wife must also sue jointly, it is said in a third case, sc, 
 on covenants running with the land of which they are joint assignees (Middle- 
 mon; V. Goodale, Cro. Car. 503, 505. See Wootton v. StefTenoni, 12 M. & W. 
 129; Broom, Parties, 2nd ed. , s. 108). 
 
 I. So at common law, and unless Hobbs, 70 Me. 381 ; Hill v. Hill, 38 
 
 the contrary results from the ex- Md. 183; Chestnut v. Chestnut, 72 
 
 press terms of the statute or by 111. 350. Not so in equity. Porter 
 
 necessary implication. Smith v. v. Dank of Rutland, 19 Vt. 417; 
 
 Gorman, 41 Me. 408; Crowther v. Kashaw v. Kashaw, 3 Cal. 321; 
 
 Crowther, 55 Me. 359; Hobbs v. Wood v. Wood, 2 Paige. 457. 
 13
 
 194 PARTIES TO ACTIONS. 
 
 This and the next rule, (/) can only be understood by 
 bearing in mind the eflcct of marriage on the personal 
 property of the wife. 
 
 This property may consist either of personal chattels 
 in possession, or of choscs in action, {u) The former, 
 whether belonging to her at the time of the marriage, or 
 accruing to her during coverture, become, in general, (w) 
 the absolute property of the husband, {x) The 
 [175] latter, whether belonging to the wife at the time ot 
 the marriage, or accruing to her during coverture, 
 do not belong to the husband absolutely, but become his 
 only conditionally upon his reducing them into possess- 
 ion, /. c, making them his own, during coverture, {y) 
 
 B., for example, has at the time of her marriage with 
 A., possession of ;i^ioo, and £^0 is owing to her from X. 
 On her marriage, the ^100 becomes the absolute property 
 of A. The ^50 does not become his absolute property; 
 and if he were to die without reducing it into possession, 
 it would continue the property of B. Suppose, however, 
 that A. pays his debt of ;^50, either to B. or to A. ; or, 
 suppose that the amount is actually recovered irom him 
 in an action. In either case the £"^0, which was before 
 a chose in action, and as such belonging to B., has been 
 reduced into possession, and in consequence becomes the 
 absolute property of A., so that on his death it passes to his 
 representatives. The rights of a wife at common law, as 
 regards the choses in action, have been described by the 
 Court of Queen's Bench in the following language : 
 
 "There is no doubt that all personal property of a 
 corporeal nature, such as goods or cash belonging to the 
 wife before marriage, vests in the husband by the mar- 
 riage, and that all such property given to or acquired by 
 the wife after marriage also vests in the husband. But 
 
 {t) Rule 31. 
 
 (u) For the distinction, see rt«/'if. / 
 
 {w) Coke.Litt., 351 b ; 2 Steph., Comm., 6th ed., 286. 
 
 (x) This is not so as to property to which she is entitled in autre dioit, e.i^. 
 as executrix, i Steph., Comm., 6ih ed., 286. 
 
 (/) 2 Steph., Com-n., 6th ed., 286, 287 ; Wilkinson v. Gibson, L. R. 4 Eq. 
 162.
 
 HUSBAND A AW WIFE. 195 
 
 choses in action belonging to the wife before marriage 
 do not vest in the husband unless he has done some act to 
 reduce them into possession during the coverture ; even 
 during the coverture the husband may permit the wife to 
 make a contract, in an action on which he may join with 
 her during her life, though he may disaffirm her interest, 
 and sue on the contract as made with himself alone. If he 
 doespermit the wife to make such a contract, and does not 
 reduce it into possession during the coverture, it survives 
 to the wife. The earlier cases illustrating this rule 
 are cases of written contracts, such as bonds or [176] 
 promissory notes given to his wife, or to the hus- 
 band and wife dunng coverture. As to these, the law 
 is stated in i Williams on Executors, 6th ed., p. 798. to be 
 fully settled, * that if there be a bill or note made to a 
 married woman during coverture, the husband may sue 
 upon it, or permit his wife to take an interest in it, in 
 which case it appears to stand on the same footing as 
 if it had been made to her before coverture.' Except 
 from the difficulty of showing that the contract was, in fact, 
 made with the wife, we see no reason why the rule of law 
 should be different in this respect in the cases of contracts 
 in writing and any other." {z) 
 
 Choses in Action — Reduction into Possession. — In order, 
 therefore, to determine whether a wife must, {a) or may, 
 (^) join in an action ; or, what is in reality the same inquiry, 
 whether her or her husband's representatives are the 
 proper parties to bring an action, it is necessary to con- 
 sider the two following questions : 
 
 \st Question. — Was the claim in respect of which an 
 action is to be brought ever a chose in action of the 
 wife's ? 
 
 The distinction between property in possession, e. g.^ 
 the cash, articles of furniture, cSlc, which a person actually 
 possesses, and the choses in action, e. g.y debts, which lie 
 can only recover by action, is in itself sufficiently plain. 
 
 («) Flept V. Pei-ins, L. R. 3, Q. B. 541, 542, per Curiam. 
 (a) Rule 30. 
 (*) Rule 31.
 
 196 PA RTF lis TO ACTIONS. 
 
 But it is not always easy to decide under which head 
 given property falls. Thus it has been doubted whether 
 bills, notes, iSic, are property in possession or choses in 
 action ; and, thou<;h it is now decided that they are 
 choses in action, the fact that they were at one time con- 
 sidered personal chattels in possession, still, to some extent, 
 affects the rules as to the parties to sue upon them. The 
 
 two following cases exemplify the difficulties which 
 [177] ma}' still arise in determining the character of a 
 
 given claim : 
 By a settlement made on the marriage of A. with B., 
 his wife, certain leaseholds were assigned to X., in trust, 
 to allow B. to receive the rents during her life. B., during 
 coverture, received the rents from X., and lent a portion 
 of the money so received to him. It was held, that after 
 B.'s death, A. might in his own right sue X. for the 
 money, in an action for money received, {c) It was con- 
 tended on behalf of X., that the money lent b}^ B. was a 
 chose in action, which during her life must have been 
 sued for by A. and B., and on B.'s death must be sued for 
 by her administrator. The decision of the Court went 
 on the ground that the money when received b}^ B. be- 
 came A.'s property in possession, which in point of law 
 belonged to him, and that he, therefore, sued B,, not for a 
 chose in action of his wife, but to recover his own money 
 owing to himself. 
 
 X. received money from M. to be appropriated to the 
 use of B., the wife of A., and wrote to B., telling her that he 
 held the money at her disposal. A. survived B., and died, 
 never having at any time interfered as to the money. It 
 was held by the Court of Queen's Bench, {d) and by the 
 majority of the Exchequer Chamber, {e) that the repre- 
 entative. not of A., but of B., was the proper party to 
 sue for tlie money, as the facts showed a chose in action 
 conferred on the wife with which the husband had not 
 interfered during coverture. 
 
 (c) Bird /. Peagrum, 13 C. B. 639 ; 22 L. J. 166, C P. 
 
 (d) Fleet V. Perrins, L. R. 3,Q. B. 536 ; 37 L.J. 233, Q. B. 
 {e] L R. 4. Q, B. 500 ; 37 L. J. 536, Q. B. (Ex. Ch.)
 
 HUSBAND AND WIFE. 197 
 
 " The tacts show that there was a chose in action con- 
 ferred on the wife with which the husband did not during- 
 coverture interfere. The money did not, according to the 
 rule in WiUiams v. Everett, (/) become the money 
 of the person on whose behalf it was remitted until [178] 
 the depositee had by some act attorned to that per- 
 son, up to which time it remained the money of the 
 remitter, {g) The money here was remitted for the use 
 of the wife, and of her alone ; and the letters of the de- 
 fendant attorning to the remittee were addressed to the 
 wife a(one, and were promises to her to hold the money 
 at her disposal ; and there never was anything done to 
 vest either in the husband or the wife any property in any 
 coin as a personal chattel, so that it remained a mere chose 
 m action in the wife, with which the husband did not in- 
 terfere." {Ji) 
 
 2nd Question. Has the chose in action been reduced 
 into possession ? 
 
 Suppose it to be determined that a wife once pos- 
 sessed a chose in action. The further question still 
 remains whether her husband has reduced it into posses- 
 sion. (0 
 
 The general principle is that his "acts, in order to 
 effect that purpose [viz., of reducing his wife's choses in 
 action into possession], must be such as to change the 
 property in them ; or, in other words, must be something 
 to divest the wife's right, and to make that of the husband 
 absolute; such as a judgment recovered in an action 
 commenced by him alone, or an award of execution 
 recovered by him and his wife, or receipt of the 
 money." (7) 
 
 The most usual modes in which a reduction into pos- 
 session, e.g., of a promissory note, can be effected by the 
 husband, are receiving the money due, recovering the 
 amount in an action, or, apparently, bringing an action 
 
 (/) 14 Kast. 582. 
 
 ( g) See ante. 
 
 (h) Fleet V. Perrins, L. R. 3, Q. B. 542. per Hlackhurn, J. 
 
 («') Scarpellini v. Atcheson, 7 Q. H. 875, jurigment of Denman, C. J. 
 
 ij) I Williams. Executors, 6lh ed., 802, 803.
 
 [98 PARTIES TO ACTIONS. 
 
 (where this can be done) in his own name alone, {k) 
 [179] The fact of a husband in some respects treating the 
 property of his wife as his own, or expressing an 
 intention to reduce it into possession, is not of itself suf- 
 ficient to defeat her rights. (/) 
 
 If the answer to these questions be, that the wife has a 
 chose in action, c. g., a debt due to her, and that the chose 
 in action has never been reduced into possession by her 
 husband, she always may, and in some cases must, join 
 with her husband in an action to recover it, and this 
 principle will be found to be the explanation of most of 
 the rules as to the joinder of husband and wife as plain- 
 tiffs. 
 
 Case I. — On all contracts of whatever description 
 (except, perhaps, negotiable instruments, e. g., bills of 
 exchange or promissory notes) {m) made with a womar 
 before marriage, actions must be brought during cover 
 ture in the names of the husband and of the wife, {ji) 
 
 This rule holds good whatever be the nature of the 
 contract sued upon, and applies as well to actions on so- 
 called implied contracts, e. g., for money had and received, 
 as to other actions ex contractu. 
 
 Case 2. — On all contracts in which the wife claims, not 
 in her own right, but in a representative character, e. g., 
 as executrix, an action must be brought in the names of 
 the husband and of the wife. {6) " If, however, the hus- 
 band alter the nature of the debt owing to his wife in 
 the character of executrix or administratrix, he alone 
 may bring the action for recovering it. Thus if he 
 
 (k) Hart V. Stephens, 6 Q. R. 937 ; Scarpellini v. Atcheson, 7 Q. B. 864 ; 
 Gaters v. Madeley, 6 M. & W. 423 ; Lush, Practice, 3rd ed., 46. It may, how- 
 ever, be a little doubtful whether the bringing an action in the husband's own 
 name is in all cases a sufficient reduction into possession. Compare Scarpel- 
 lini V. Atcheson. 7 Q. B., 864 ; 14 L. J. 333, Q. B. ; Gaters v. Madeley, 6 M. a 
 W. 423. 
 
 (/) See Williams, Executors, 6th ed., 801-812. 
 
 (m) McNeilage v. Holloway, i B. & Aid. 218 ; i Williams, Executors, 6th 
 ed., 794. 
 
 («) Milner v Miines, 3 T. R. 627, 631 ; Benedix v. Wakeman, 12 M. & W 
 97; Sullen, Pleadings, 3-J ed., 171. 
 
 (0) Bullen, Pleadings, 3rd ed., 166 ; William.s, Executors 6th ed., 904.
 
 HUSBAND AND WIFE. 199 
 
 should indulge the debtor with further time, in [:8o] 
 consideration of an express purpose to pay the 
 husband, &c., he alone may compel payment of it by 
 action, ... so that joining the wife in the action 
 would be error. He also may sue alone " [though he 
 need not] (/) "if the note or security be given' to them 
 jointly, as to him, and to his wife as executrix." {q) 
 
 Effect of death.— On the death of the husband, the right 
 of action on all contracts (r) made with the wife before 
 marriage survives to her, and she may either commence, 
 or (supposing an action has already been brought) con- 
 tinue, an action upon them. On the death of the wife, 
 the right of action passes to her administrator. Her 
 husband, who always has a right to be her administrator, 
 must sue in that character. Hence, if she dies after the 
 commencement of an action, the action, it is said, abates, 
 i. e., the proceedings are put an end to. {s) 
 
 The death of the husband produces no effect on the 
 wife's right to sue on contracts made with her as exec- 
 utrix. She may, that is to say, commence, or (if an 
 action has been already begun) continue, an action upon 
 them in her own name. On the death of the wife, whether 
 before or after action brought, the right of action passes, 
 not to her husband, but to the representative of her 
 testator. B., the wife of A., has claims on a contract 
 made with M., of whom she is executrix. On the death of 
 B., the right of action passes, not to A., but to the repre- 
 sentative of M. It seems, therefore, to follow, that if an 
 action be commenced by A. and B., and B. dies, the action 
 will abate. 
 
 Effect of Divorce. — Divorce annihilates the mar- 
 riage from the moment at which it is declared dis- [181] 
 solved. (?^) The woman, in consequence, retains her 
 
 {p) Ankerstein v. Clarke, 4 T. R. 616. 
 
 (q^ 2 Williams, Executors. 6th ed., 904, 905. 
 
 (r) These incluflc negotiable instruments (<». ,^.. bills of exchange), which, 
 perhaps, do not come within Case T, as the husband apparently may sue upoc 
 them alone. 
 
 (s) Lush, Practice, 3rd ed., 46. 
 
 («) Wilkinson V, Gibson, L. R. 4. Eq- 162, 167.
 
 200 PAR71KS TO ACTIONS. 
 
 property in all choses in action which her husband has 
 not reduced into possession {x) during coverture, and 
 must, therefore, after divorce, sue alone on all contracts 
 made with her before marriage, the claims on which 
 have not been reduced into possession before the mar- 
 riage was dissolved, {y) On the death of the woman, 
 the right to sue on such contracts passes to her represent- 
 atives, (c) 
 
 Set-off. — In actions by husband and wife, debts due 
 from the wife, i. c, debts contracted before marriage, {a) 
 may be set-off against debts claimed by the husband and 
 wife. 
 
 Rule 31. — A husband may sue either alone 01 
 jointly with his wife in three cases, sc. : 
 
 1. On negotiable instruments (e. g., bills of ex- 
 change) given to his wife before marriage. 
 
 2. On contracts made after marriage with his 
 wife alone. 
 
 3. On contracts made after marriage with himself 
 and his wife. 
 
 Case I. — It was at one time considered {b) that nego- 
 tiable instruments, (e. g., bills of exchange) were 
 [182] personal chattels in possession ; and though it now 
 may be held as settled that they are to be considered 
 choses in action, yet bills of exchange, notes, &c., still seem 
 to be held {d) so far property in possession that a hus- 
 
 {x) See ante. 
 
 ( y) Wilkinson v. Gibson. L. R. 4, Ex. 162, 167. 
 
 (2) Compare Johnson v. Lander, L. R. 7, Eq. 228. 
 
 {a) Burrough v. Moss, 10 B. & C. 558 ; Field v. Allen, q M. & W. 694 ; 
 Lush, Practice, 3rd ed., 46. She can not contract debts diirinj^ coverture. 
 
 {b) McN'eilage v. Holloway, I B. & Aid. 218 ; Caters v. Madeley, 6 M. cS: 
 W. 423 ; Richards v. Richards, 2 B. & Ad. 447 ; i Williams, Executors, 6th 
 ed., 794, 797. 
 
 (</) Bullen, Pleadings, 3rd ed., 171. But see Bright, Husband and Wife, C4.
 
 HUSBAND AND WIFE. 201 
 
 band may sue upon them alone, though given to his wife 
 before marriage. 
 
 Such instruments do not become the property of the 
 husband until reduced into possession ; and, therefore, 
 pass on the death of the wife to her administrator, and 
 stand (except as regards the right of the husband to sue 
 upon them alone) in the same position as other contracts 
 made with a wife before marriage, {e) 
 
 Case 2. — A married woman, though incapable ot mak- 
 ing a contract, is capable of having a chose in action con- 
 ferred on her, which will survive to her on the death of 
 her husband, unless he has interfered by doing some act 
 to reduce it into possession. (/) A wife, that is to say, 
 can not contract, but she may be contracted with, in so 
 far that she mav receive rights under a contract. Hence, 
 where a promise is made to a married woman on a con- 
 dderation proceeding from her solely, as a contract with 
 her to pay for her services rendered, wherever, as it is 
 said, the wife is the " meritorious cause " of the action, 
 there is a contract with her on which either the husband 
 may sue alone in his own name, or jointly in his own name 
 and that of his wife, {g) On a bond given to the wife 
 during coverture, the husband and wife may have a joint 
 action during their lives; or the husband may sue during 
 coverture in his own name, {h) On a note made to 
 the wife during coverture, the husband may sue [183] 
 alone, or husband and wife may sue jointly, {i) 
 
 The contracts made with a wife during coverture, of 
 which examples are to be found in decided cases, are 
 mostly contracts in writing, such as bonds, notes, &c. ; 
 but there is no reason why a contract should not be made 
 
 ,'(■) I Williams, Kxecutors, 6th ed., 798. 
 /) Ibid.. 794 ; Dalton v. Midland Rail. Co., 13 C. H. 474. 473 ; 22 L. J 
 
 177, 178, C. V. 
 
 ?•) Hidgood V. Way, 2 W. 151. 1236; Dalton v. Midland Kail. Co., 13 C. 
 B. 474; 22 L.J. 177. C. P. 
 
 [/r Day v. I'adrone, 2 M. & S. 396, n. (I>) ; AnkTslcm v. Clarke, 4 T. R. 
 
 (i) rhilliskirk v. Pluckwcll, 2 M. & S. 393 ; Howard v. Oake-..3 Exch. 136, 
 Burrough v. Moss, 10 B. & C. 558 ; iUiIlcn, Pleadings. 3rd sd.. 171, 173-
 
 202 PARTIES TO ACTIONS 
 
 with a wife by word of mouth. {», It is more difficult 1o 
 prove that such a contract wa^- made with the wife, and, 
 it must be remembered, that in ord^.r to make out a valid 
 simple contract (other than a bill or note), it is necessary 
 to show a consideration proceeding from the wife. Thus 
 it has been held, that a wife could not join in an action 
 for the worth of her labor, masmuch as the nusband was 
 entitled to the proceeds of her labor, and the promise in 
 law, therefore, there being no express promise to the wife, 
 must be made to the husband. (/) 
 
 Case 3. — Where a contract is made with a husband 
 and wife, e. g., a covenant, bond or promissory note, the 
 husband may sue on it alone, {m) or may join his wife, {n) 
 
 The principle in this case, as in all the other cases in 
 which a husband can sue either alone or jointly with his 
 wife, is, that he can treat a promise made to her during 
 coverture, whether alone or jointly with himself, either as 
 a promise made in reality to himself or as a promise made 
 to her on which she has a right to sue, though she must, 
 from her position, join him as a plaintiff in the action. 
 
 A judgment obtained by a husband and wife during 
 coverture, stands on the same footing as a contract 
 [184] made with the husband and wife jointly. The hus- 
 band may sue upon it alone, or he may bring an 
 action in his own name, and in that of his wife. {0) 
 
 Effect of Death. — If a contract be made after marriage', 
 either with the wife alone or with the husband and wife 
 the effect produced by the death of either party is as fol 
 lows : 
 
 {k) Fleet V. Perrins, L. R. 3, Q. B. 536; 37 L.J. 233, 536, Q. B. ; L. R. 4 
 Q. B. 500 ; 37 I,. J. 536, Q. B. (Ex. Ch.,. See esp. judgment of Blackburn 
 J., L. R., 3 Q. B.541, 542 ; and of Cleasby, B., L. R., 4 Q. B. 507, 508. 
 
 (/) Brashford v. Buckingham, i Cro. Jac. 77. 
 
 (m) Ankerstein v. Clarke, 4 T. R. 616. 
 
 (w) Philliskirk v. Pluckwell, 2 M. & S. 393. 
 
 {o) I Selwyn, N. P., r3th ed., 249 ; i Williams, Executors, 6th ed., 808. If, 
 when an action is brought by the husband arid wife the husband dies after 
 judgment, and before the money due on it is recovered, such money is the prop- 
 erty of the wife. If, where the husband may join his wife, he prefers to sue 
 alone, this is, it would seem, an election to treat the contract as made with 
 *iim, and the money due, e.g., on the bond or note is, on his death, the prop- 
 erty of his representatives.
 
 HUSBAND AND WIFE. 203 
 
 On the death of the husband before action brought, the 
 right of action survives to the widow, and not to the 
 husband's representatives. On the death of the wife before 
 action brought, the right of action, on a contract made 
 with her alone, passes to her administrator, and her hus- 
 band must sue in that capacity. The right of action on a 
 contract made with the husband and wife survives to the 
 husband. 
 
 On the death of the husband after action brought, the 
 right of action survives to the wife. No effect is pro- 
 duced on the action, and the recovery is for her benefit. 
 On the death of the wife after action brought, the right 
 of action on a contract with the wife alone, passes to her 
 administrator, and, it would seem, the particular action 
 abates ; the right of action on a contract made with the 
 husband and wife survives to the husband, {p) 
 
 Effect of Divorce. {q)—lt would appear that the effect 
 of divorce is the same upon all the choses in 
 action of the wife ; and that it therefore makes no [185] 
 difference as to the right of a divorced woman to 
 sue alone on contracts made with her, whether they were 
 made before or after marriage, {r) 
 
 Set-off. — Where a husband sues in his own name with- 
 out joining his wife, debts due from the husband can be 
 set-off against him. But debts due from the husband on 
 account of his wife, sc, debts contracted by his wife 
 before marriage, can not be set-oif. 
 
 Where a husband sues in his own name and \n that ot 
 his wife, debts due from him can not be set-off, but debts 
 due from him on account of his wife, sc, debts contracted 
 by her before marriage, can be set-off. 
 
 ip) These statements do not apply when thi; chose in action has been re- 
 duced into possession, and, therefore, do not apply where an action has been 
 brought in the husband's name, since bringing such an action is (apparently) 
 equivalent to a reduction into ])ossession. They do not ajiply to negotialiie 
 instruments given to the wile before marriage, which, except as regards the 
 fact that the husband may sue upon them alone, stand in the same position as 
 other contracts made with the wife before marriage. 
 
 iq) A douljt may (it is conceived) exist as to liie effect of divorce on a con- 
 tract made with the liu-li.ind and wife. 
 
 (r; See ante.
 
 204 PARTfRS TO ACTIONS. 
 
 To put the same thing in a difiercnt form, when a 
 husband sues in his own name, the action is treated as 
 one brought by him, and against his claims in such an 
 action debts can not be set-off which are due, not from 
 him, but from his wife. When, on the other hand, the 
 action is brought by the husband and wife, it is consid- 
 ered as one brought by her, though the husband's name 
 must be joined, as it is said, for the sake of conformity, 
 and therefore debts due from her can, and debts due from 
 him can not, be set-off. {s) 
 
 Rule 32. — The following are the results of errors 
 as to joinder of parties in actions by husband or 
 wife : 
 
 1. If a husband sues alone where the wife must 
 (/) be joined, the error is fatal. 
 
 2. If a wife sues alone where she either must {t) 
 or may {71) be joined, the only result is to expose 
 
 her to a plea in abatement. 
 [186] 3. If a husband sues with his wife where she 
 neither must nor may be joined, the error is 
 fatal. 
 
 I. If a Jiusbajid sues alone where the wife must be joined y 
 the error is fatal. — A., the husband of B., sues alone in a 
 case in which B. ought to be joined, e.g., on a contract 
 made with B. before marriage, iy) The error is fatal ; 
 tor the person who really has a cause of action is not the 
 husband, but the wife, though the action ought, as a mat- 
 ter of form, to be brought in her and her husband's 
 names. The error can, if it appears upon the record, be 
 taken advantage of by demurrer, motion in arrest of 
 iudgment, or error. If it transpires at the trial, it will be 
 
 (j) See Lush, Practice, 3rd ed., 46, 47. 
 
 (/) Rule 30. 
 
 («) Rules 30 and 31. 
 
 {v) Rule 30, Case i.
 
 HUSBAND AND WIFE. 205 
 
 a ground for a non-suit or an adverse verdict, {w) It is 
 questionable whether this error can be amended. 
 
 2. If a wife sties alone where she either must or may 
 be joiyted, the only result is to expose her to a plea in abate- 
 ment. — Suppose that B. sues alone on a contract made 
 with her before her marriage with A., or on a chose in 
 action, e. g., a bond, given her during coverture. She 
 has in either case a right of action, but she ought as a 
 matter of form, or, as it is said, " for the sake of con- 
 formity," to join her husband. The omission to do so is. 
 however, not a fatal error. The defendant can take 
 advantage of it by a plea in abatement, but if he does 
 not plead in abatement, and the fact that the husband 
 ought to have been joined appears at the trial, the defend- 
 ant can take no advantage of the error whatever, (.r) 
 
 "i,. If a husbajid sties with his wife where she neither 
 must nciT may be joined, the error is fatal. — If A. sues in his 
 own name and in that of B., e. g., on a contract made with 
 him before marriage, the error is fatal. 
 
 It would seem that the error can not be amended, 
 for it is not so much a case of misjoinder as of an [187] 
 action brought by a wrong plaintiff, (j/) 
 
 Rule 33. — Where a husband is bankrupt and the 
 trustee in bankruptcy sues in the riijht of the wife, 
 he must join the wife with him in suing. 
 
 Where the right of action of a bankrupt's wife is of 
 such a character that if vested in the bankrupt himself, 
 it would have passed to his trustee in bankruptcy, {z) the 
 
 {7v) Hullen, I'leaflings, 3r(l ed., 171. 
 
 jr) Ibid. ; Dalton v. Midland Rail. Co.. 13 C. R. 474 i 22 L. J. 177, C. V. 
 
 \y) See Holinybroke v. Kerr. L. R. r, Ex. 222. 223, and Th.-ipler XXXIV. 
 In all cases, except those enumerated, the liusljand must sue alone on contracts 
 made with the wife. Such contracts are. in fact, not contracts with her. but 
 contracts made with her husband ihrouijh her as his agent. If a wife sues 
 alone in a ca^e where she can not be joined as plaintiff, she is suing without 
 any cause of action, and must fail. 
 
 («) .See Chapter IX. f-oft.
 
 206 PARTIES TO ACTJONS. 
 
 interest of the bankrupt in such right of action passes to 
 the trustee. 
 
 The trustee, that is to say, has the same rights with 
 regard to contracts with the bankrupt's wife, in her own 
 right, as the husband before bankruptcy himself possessed, 
 e. g., if a contract is made with B. before her marriage 
 with A., A.'s trustee has the same interest in the contract 
 as A. himself possessed before the bankruptcy. An ac- 
 tion, therefore, can not be brought either in the name of 
 B. alone, {a) or in the name of A. and B., {b) but that it 
 must be brought in the names of B. and of the trustee, and 
 the recovery will be for the advantage of the trustee. 
 
 The assignment, however, in bankruptcy does not 
 reduce the wife's choses in action into possession, and 
 therefore, if the husband die after bankruptcy, the wife's 
 rights of survivorship are not destroyed by the bank- 
 ruptcy, {c) e. g., a contract is made with B., before 
 [i88] her marriage with A., A. becomes bankrupt and 
 then dies, no steps having been taken to reduce B.'s 
 chose in action into possession. B.'s rights under the con- 
 tract are unaffected b}^ the bankruptcy, and she is the 
 person to sue for its breach. 
 
 (a) Sherrington v. Yates, I2 M. & W. 855 ; 13 L. J. 249, Ex. 
 
 \b) Richbell v. Alexander, 30 L. J. 268. C. P. ; 10 C. B., N. 3 324. 
 
 {c) See Roper, Husband and Wife, 2nd ed., 232.
 
 BANKRUPT AND TRUSTEE. zoj 
 
 CHAPTER IX. 
 
 BANKRUPT AND TRUSTEE. 
 
 Rule 34. — The trustee ((i;)ofthepropertyof a bank- 
 rupt must sue for the breach of any contract made 
 with the bankrupt before bankruptcy in which the 
 bankrupt has both a legal and a beneficial interest 
 
 Trustee must sue. — " The object of all the statutes with 
 regard to bankrupts [has been] that everything that can 
 be turned to profit shall pass " {b) immediately on the 
 bankruptcy, and be assigned to some person, called under 
 the f(jrmer Acts an assignee, and under the present x^ct a 
 trustee, who shall hold the property thus passing to him 
 for the benefit of the creditors. 
 
 This object is thus attained under the Bankruptcy 
 Act, 1869. On the adjvidication of bankruptcy, all the 
 property of the bankrupt vests in the registrar of the 
 court, and, on the appointment of a trustee, forthwith 
 passes to and vests in the trustee, {c) who is empow- 
 ered " to bring or defend any action, suit, or other 
 legal proceeding, relating to the property of the [190] 
 bankrupt." {d) 
 
 The term property is, for the purposes of the Act, 
 
 (rt) " Th« trustee of the property of a l)ankrupt" [who is, in subseiiuenl 
 rules called the "trustee"] occupies the position of the assignees in hankiuplcy 
 under Hankruptcy Acts prior lo the liankruplcy Act, 1869. This must he 
 borne in mind, since in all the hitherto decided cases the expression " assignee," 
 or "assignees," is u>ed, and is therefore, for the sake of convenience, tretpiently 
 employed in the explanation of this and other rules contained in the chapters 
 on l)ankru|)ts. 
 
 {/>) Smith V. Coffin, 2 H. I'd. 462, judgment of Bui.l.KK, J. Compare Rogers 
 V. Spence, 13 M. & W. 571, 581, judgment of Dknman, C. J. 
 
 (c) bankruptcy Act, 1869, s. 17. 
 
 (d) Hankruptcy Act, 1869, s. 25, cl. 3.
 
 2o8 PART//{S TO ACTIONS. 
 
 given a wide sense, being defined to mean and inciude 
 " money, goods, things in action, land, and every descrip- 
 tion of propcrt}', whether real or personal; also obliga- 
 tions, easements, and every description of estate, interest, 
 and profit jircsent or future, vested or contingent, arising 
 out of property as above defined." (e) It, moreover, em- 
 braces (among other things) " all such property as may 
 belong to and be vested in the bankrupt at the commence- 
 ment of the bankruptcy, or may be acquired by or devolve 
 on him during its continuance." (/) 
 
 The present Act therefore directly {£■) transfers or 
 assigns to the trustee all the rights of the bankrupt under 
 contracts with hnn and for his benefit ; hence the trustee, 
 and not the bankrupt, must sue on all contracts made with 
 the latter, as well for unliquidated (//) as for liquidated 
 damages, whether the breach occur before (z) or after (/&) 
 the bankruptcy. And if the contract is executory, and 
 the bankrupt must, in order to claim the benefit of it, do 
 some act on his part, the trustee may (provided the act is 
 one which can be done by the trustee) perform any con- 
 dition which remains to be performed, and thereupon 
 claim the benefit of the contract. (/) " In no case can the 
 party w'ho contracted with the bankrupt set up the 
 bankruptcy against the assignees as a reason for not doing 
 what he has agreed to do. Where, indeed, the pay- 
 [191] ment of money, or the performance of any other 
 duty by the bankrupt, forms a condition precedent 
 to the doing of the act w^iich the contracting party has 
 agreed to do, there, unless the money is paid or duty 
 performed, either by the bankrupt or his assignees, it is 
 plain on principles altogether independent of any ques- 
 tions arising from bankruptcy . . . that no obligation 
 
 (e) Ibifl., s. 4. 
 
 (/) Ibid., s. 15. Compare s. 11. 
 
 (^) Conf. Rogers v. Spence, 13 M. & W. 571, 580, judgment of Denman. 
 C.J. 
 
 (A) Wright V. Fairfield, 2 B. & Ad. 727. 
 
 (i) Beckham v. Drake, 2 H. L. 846 ; 10 L. J. 356, Ex. 
 
 (k) Gibson v. Carruthers, 8 M. & W. 321 ; ri L. J. 138, Ex. ; Schondler ▼ 
 Wace, J Camp. 587. 
 
 (/) Gibson v. Carruthers, 8 M. & W. 321 , ri L. J. 13S, Ex.
 
 BANKRUPT AND TRUSTEE, 209 
 
 exists on the other party to perform his part of the en~ 
 gagemcnt." {m) In other words, " every beneficial matter 
 belonging to the bankrupt's estate [vests in the assignees'], 
 and amongst others, the right of enforcing unexecuted 
 contracts by which benefit may accrue to that estate, and 
 such as ma}- be performed on the part of the bankrupt by 
 the assignees In order to enforce these con- 
 tracts it is only necessary that the assignees should perform 
 all that the bankrupt was bound to perform, as precedent 
 or contemporary conditions, at the time when he was 
 bound to perform them, and the bankruptcy has no other 
 effect on the contracts than to put the assignees in the 
 place of the bankrupt, neither rescinding the obligations 
 on either party nor imposing new ones, nor anticipating 
 the period of performance on either side." («) 
 
 The trustee, further, may either adopt or repudiate the 
 contracts of the bankrupt according as he judges them 
 likely to prove beneficial or the contrary, {p) But his 
 repudiation or disclaimer does not leave in the bankrupt 
 any right of action, for if a contract is disclaimed by the 
 trustee it is to be considered as determined from the date 
 of the adjudication, and in no case does the bankrupt re- 
 tain any interest under it. (/) 
 
 The bankrupt can not sue. — The bankrupt can not, even 
 with the assent of the trustee, sue on contracts made with 
 him before bankruptcy ; for the effect of the bankruptcy 
 has been to transfer or assign his rights to the 
 trustee. Hence, where a person was entitled to a [19?] 
 commission for introducing to a tradesman a pur- 
 chaser of the tradesman's business, and afterwards became 
 bankrupt, and the assignees disclaimed all title to the 
 money, it was held that the bankrupt could not bring an 
 action for it in his own name, {q) 
 
 The rip-ht of a trustee to sue on all contracts made 
 with the bankrupt is subject to the limitation that he can 
 
 (ni) Gibson v. Carruthers. 8 M. & W. 333. per Tarkk, B. 
 («) Ibid., 327, judgment of Rolke, B. 
 
 (<») Ibid., 321 ; II L. J. 138, Ex. ; Bankruptcy Act, 1869. ss. 23, 14. 
 (/) Bankruptcy Act, '86q, s. 23. 
 (a) Miliary v. Morris, i C. & P. 6. 
 14
 
 2IO PARTIES TO ACTIONS. 
 
 not sue on any contract in which the bankrupt has not 
 both a legal and also a benericial or equitable interest. 
 In other words, the creditor's representative can not sue 
 on contracts with regard to which the bankrupt has 
 rights either as a cestui que trust or merely as a trustee. 
 
 If the bankrupt has not a legal interest in a contract, 
 but simply a beneficial interest, the contract must in point 
 of law be made, not with him, but with some other per- 
 son who is legally interested in it, and is the right person 
 to sue upon it. (r) Any money, however, recovered in 
 such an action vests in the trustee of the bankrupt's prop- 
 erty. If, on the other hand, the bankrupt has a legal 
 interest in a contract, but has no beneficial or equitable 
 interest in it whatever, he must himself be a mere trustee 
 for some third person. No interest in this case passes to 
 his trustee, {s) The bankrupt retains his legal interest in 
 the contract, and must sue upon it in his own name for 
 the benefit of the person really interested. Though where 
 a bankrupt has merely a legal interest in a contract, 
 nothing passes to his trustee, yet if the bankrupt has any 
 beneficial interest, however small, if, that is to say, any 
 portion whatever of the money recovered in an action 
 upon it, would, but for the bankruptcy, have gone to the 
 bankrupt himself, then the right of action for a breach of 
 the contract passes to the trustee, who, however, re- 
 covers partly for his own benefit as such trustee, 
 [193] and partly for the benefit of the cestui que trust, or 
 the other person beneficially interested. (/) 
 
 A trustee is sometimes both legally and beneficially 
 interested in a contract, and therefore able to sue upon 
 it, though the bankrupt, had he remained solvent, must 
 have sued upon it, if at all, for the benefit of some third 
 person. This is the result of the doctrine of relation, or 
 the rule that the trustee's title to the property of the 
 bankrupt dates back, not to the time of the adjudication 
 
 (r) See ante. 
 
 {s) Bankruptcy Act, i86g, s. 15. 
 
 (/) D'Arnay v. Chesneau. 13 M. & W. 796, 809. Compare Parnham v 
 Hurst, 8 M. & W. 743 ; Castelli v. Boddington, i E. & B. 66 ; 22 L. J. 5, Q 
 B. ; Lush, Practice, 3rd ed., 49.
 
 BANKRUPT AND TRUSTEE. 211 
 
 of bankruptcy, but to the commission of an act of bank- 
 ruptcy, or as it is called in the Bankruptcy Act, 1869, the 
 commencement of the bankruptcy, {ti) The trustee being 
 considered for legal purposes the possessor of the bank- 
 rupt's property at a time before he was adjudicated a 
 oankrupt, can often annul transactions of the bankrupt 
 and act as having both a legal and equitable interest in a 
 contract in which the bankrupt, from having assigned it to 
 a third party, had retained a merely legal interest. 
 
 Suppose, for instance, that a person, after the commis- 
 sion of an act of bankruptcy on which he is subsequently 
 adjudged bankrupt, but before the date of the adjudica- 
 tion of bankruptcy, sells to some third party, M., who 
 knows of the act of bankruptcy, a debt due to him. After 
 the adjudication of bankruptcy, the trustee can treat the 
 sale as void, and sue for the debt, though it is manifest 
 that the bankrupt himself could have sued for the debt 
 only for the benefit for M., since he h.».d parted with all 
 his equitable interest in it. {x) 
 
 Exception i {y). — Contracts, the breach of wi. Ich involves 
 injury to the person or to the feelings ol the bar/Krupt. 
 
 Though " the general principle is, tnat all rights [194] 
 of the bankrupt which can be exercised beneficially 
 for the creditors . . . pass [to the assignees], and the 
 right to recover damages may pass, though they are un- 
 
 (u) Bankruptcy Act, 1869, s. 15. 
 
 {x) Compare Bankruptcy Act, 1869, ss. II, 15, 95. 
 
 {y) The words of the I5ankruptcy Act, 1869, transferrin^^ to the trustee the 
 property of the bankrupt, are considerably wider than the expressions employed 
 in the corresponding sections of earlier Bankruptcy Acts (compare Bnnkruptcy 
 Act, 1S69, ss. 4, 15, and 17, with Bankruptcy Act, 1849, s. 141), and distinctly 
 pass to the trustee the bankrupt's things in action, under which term may be 
 included all the bankrupt's rights of action whatever, whttlier arising from 
 breach of contract or from tort. The result is, that whilst it is certain that the 
 trustee can sue in all cases in which the assignees could have sued, it can not, 
 in the abs<.-nce of decisions, be considered as established, that where the 
 assignees could not sue under ihe former Acts, the trustee can not sue under 
 lhe present Act. In other words, the exceptions to the foregoing rule, as also 
 the exceptions to the next rule as well as the validity of the next rule itself, 
 must be considered as open to doubt.
 
 212 PARTIES TO ACTIONS. 
 
 liquidated, this pri!icii)lc is subject to exception. The 
 rii;ht of action does not pass where the dama^^cs are to be 
 estimated by immediate reference to pain felt by the bank- 
 rupt, in respect of his body, mind, or character, and 
 without immediate reference to his rights ot property. 
 Thus it has been laid down that the assignees can not sue 
 for breach of promise of marriage, for seduction, defama- 
 tion, battery, injury to the person by negligence, as by 
 not carrying safely, not curing, not saving from imprison- 
 ment by process of law." {s) To express the same thing 
 somewhat differently, " there are some exceptions to the 
 generality of the right of the assignees. In cases where 
 the personal estate is only affected through some wrong 
 or injury to the person or the feelings of the bankrupt, 
 and the loss or gain to the personal estate would be 
 greater or less, according to the compensation given for 
 such injury, whether by breach of contract or otherwise, 
 the right of action would not pass to the assignees." (a) 
 
 The damages recovered in an action for such 
 
 [195] breaches of contract, during the continuance of the 
 
 bankruptcy, become the property of the trustee, (d) 
 
 Exception 2. — Contracts uncompleted at the time of bank- 
 ruptcy in which the personal service of the bankrupt is of 
 the essence of the contract. 
 
 " Executory contracts in which the personal skill or 
 conduct of the bankrupt forms a material part do not in 
 general pass to the Trustee." [c) 
 
 A distinction must, it would seem, be drawn between 
 two kinds of contracts, each of which involve the personal 
 service of the bankrupt. Such contracts may be either 
 — first, contracts the performance of which is rendered 
 impossible by the bankruptcy {e. g., a contract by the 
 
 (2) Beckhaii v. Drake, 2 H. L. C. 603, 604, opinion of Erle, C. J. On the 
 question, how far such an action is one for breach of contract, see ante. 
 
 (a) Ibid., 617, opinion of Wightman, J. 
 
 (b) I Griffith & Holmes, Bankruptcy, 303 ; Bankruptcy Act, 1869, s. 15 ; cl 
 3, s. II. 
 
 (c) Leake, Contracts, 640.
 
 BANKRUPT AND TRUSTEE. 213 
 
 bankrupt to enter into a partnership) ; or, secondly, con- 
 tracts which, though they can not be performed by any 
 one but the bankrupt, can be performed by him in spite 
 of the bankruptcy, e. g., a contract 10 write a book, paint 
 a picture, &c. 
 
 The law to the first class of contracts is clear. Neither 
 the bankrupt nor the trustee can perform the part agreed 
 to be performed by the bankrupt, and therefore neither 
 the bankrupt nor the trustee can bring an action against 
 the other party to the contract for non-performance of his 
 Dart. " There is a certain class of contracts in which it 
 :s manifest that bankruptcy must put an end to all claim 
 of the bankrupt or his assignees to the performance of 
 them by the solvent party. The contract of partnership 
 is a familiar instance ; and in every case where the motive 
 or consideration of the solvent party was founded, wholly 
 or in part, upon his confidence in the skill or personal 
 ability of the bankrupt, if the bankrupt from his circum- 
 stances is unable to perform his part, the assignees are not 
 entitled to substitute either their own capacity, or 
 skill, or credit, for that of the bankrupt." {e) " It can [196] 
 not be doubted, that where a contract remains to 
 be executed, and can not be executed without the co-op- 
 eration of the bankrupt, the assignees can not enforce the 
 contract, at all events, unless they can procure him to 
 co-operate." (/) 
 
 The rule as to the second class of contracts is not so 
 clear. 
 
 The bankrupt may, it is conceived, himself perform 
 his own part, e.g., write a book or paint a picture, ai d 
 compel the other party to perform his part of the con- 
 tract by paying for the book or picture. The matter of 
 doubt is, whether an action against the purchaser ought 
 to be brought bv the bankrupt or by his trustee. Some 
 expressions used in the passages already cited suggest 
 that the trustee may sue if the bankrupt performs his 
 
 (d) Gibson v. Carrutlicrs, 8 M. & W. 343, judgment of Lord AuiNGER. 
 C. B, 
 
 (/) Beckham v. Drake. 2 H. L. C. 598. opinion ..1 Wii.i.lAMS, J.
 
 214 PARTIES rO ACTIONS. 
 
 part. It would, however, seem that under the former 
 Bankruptcy Acts the bankrupt was the right person to 
 sue for the breach of any contract involving the personal 
 skill or conduct of the bankrupt. Whether this is so 
 under the present Act is questionable. It is at any rate 
 clear that the trustee can not sue on such contracts unless 
 he can induce the bankrupt to perform his part, and that 
 money recovered by the bankrupt in an action on such a 
 contract during the continuance of the bankruptcy is the 
 property of the trustee. 
 
 It is difficult to decide whether a given contract is one 
 which involves the personal skill of the bankrupt. The 
 assignees have been held the proper plaintiffs in an action 
 on an agreement to employ the bankrupt as foreman ; (V) 
 but in this case the contract was broken before the bank- 
 ruptcy. Where an order was given to build a house, and 
 the builder, after beginning to build it, became bankrupt, 
 and the house was afterwards completed by the 
 [197] assignees, they were held entitled to recover under 
 the order ; (/) but it is questionable whether the 
 trustee has a right to complete a contract of this kind 
 made with the bankrupt, {k) 
 
 It has been suggested that where a contract made with 
 the bankrupt has been broken before the bankruptcy, the 
 assignees or trustee can in all cases sue on the contract, 
 whatever its nature, " that is to say, the question whether 
 a right of action actually vested in the bankrupt prior to 
 the bankruptcy, in respect of a contract determined, 
 passes to the assignees, is not affected by the consideration 
 whether the contract, if it had not been determined, but 
 had remained open and in fieri at the time of the bank- 
 ruptcy, would have passed to the assignees, and could have 
 been performed by them The right to re- 
 cover wages, salary, or commission [due to the bankrupt 
 at the time of the bankruptcy] would pass to the assignee? 
 as part of the personal estate, without regard to the con- 
 
 (g) Ibid., 579. 
 
 («■) Whitmore v. Gilmour, 12 M. & W. 808, 810. 
 
 {k) Knight V. Hurgess, 33 L. J. 727, Ch.
 
 BANKRUPT AND TRUSTEE. 215 
 
 sideration whether the contract or services had had rela- 
 tion to the personal skill or labor of the bankrupt, or any 
 confidence reposed in him, or whether the contract could 
 have been performed by the assignees " ; (/) and this view, 
 even if doubtful under the former Bankruptcy Acts, is in 
 strict conformity with the terms of the Bankruptcy Act, 
 1869, by which the bankrupt's things in action {in) vest in 
 the trustee. The trustee, therefore, is apparently the 
 right person to sue, even on contracts involving the per- 
 sonal skill of the bankrupt, which are broken bv the other 
 party before the bankruptcy. 
 
 Rule 35. — For the breach of any contract [198J 
 made with the bankrupt during the continu- 
 ance of the bankruptcy (in which the bankrupt has 
 both a legal and a beneficial interest), either the 
 trustee may sue or the bankrupt may sue, if the trus- 
 tee does not interfere. {11) 
 
 The remarks as to the right of the trustee to sue on 
 contracts made with the bankrupt before bankruptcy 
 apply mutatis mutandis to his right (which is undoubted) 
 to sue on contracts made with the bankrupt during the 
 continuance of the bankruptcy, {d) 
 
 The right of a bankrupt to sue on contracts m.ade with 
 him during the continuance ot the bankruptcy was, under 
 the former acts, fully established. Thus, where a bill of 
 exchange was endorsed to an undischarged bankrupt, it 
 was held that he could, if his assignees did not interfere, 
 sue upon it, and that a plea simply alleging that the bill 
 was endorsed to him after bankruptcy, and not alleging 
 that the assignees interfered, was bad. (/) 
 
 (/) Beckhivm v. Drake, 2 II. L. C. 632, 633. per WiLDK, C. J, 
 
 (w) Bankruptcy Act, 1869, s. 4. 
 
 {;;) Herbert v. Sayer, 5 Q. B. gf)5 ; Kitchen v. liartscli. 7 East. 53; Mor- 
 gan V. Kn=;-lit. 33 L. J. i63. C. P. ; 15 C. B.. N. S., 669; 2 Grilfilli & Holmes, 
 Ijankru]3tcy, 934. 
 
 (o) Bankruptcy Act, 1869, ss. 4, 15. 
 
 (/») Herbert v. Saver, 5 (\. B. 965; esp. judtjment of Kx. Ch. 981. Com- 
 pare Jackson v. Buniliam, 22 L. J. 13, Ex. ; 8 Ex. 172.
 
 2i6 PARTIES TO ACTIONS. 
 
 The cases which establish this ri*^ht were decided undei 
 the older Acts, but they appear in principle to apply to 
 the present Bankruptcy Act. It may, therefore, in the 
 absence of decisions, be assumed that a bankrupt can, if 
 the trustee does not interfere, sue on contracts made with 
 him during the continuance of the bankruptcy. The 
 interference of the trustee affords an answer to the 
 action, {q) and the money recovered is the property of the 
 trustee. 
 
 [199] Exception i. — Contracts, the breach of which involves 
 
 injury to the person or the feelings of the bankrupt, (r) 
 
 Exception 2. — Contracts t<:) pay for the personal labor of the 
 bankrupt performed after his bankruptcy. 
 
 The trustee, though entitled to sue for money due to 
 the bankrupt, at the time of the bankruptcy, for his per- 
 sonal labor, (s) can not sue for the price of the bankrupt's 
 personal labor performed after his bankruptcy. (/) An 
 action for it must be brought by the bankrupt himself, 
 and the amount recovered is, apparently, recovered to the 
 bankrupt's own use. {v) 
 
 The expression " personal labor " must be taken in a re- 
 stricted sense. Where a trade was carried on by a bank- 
 rupt by the leave of the assignees for the benefit of the 
 estate, the right of action on the bankrupt's contracts 
 passed to the assignees, {x) In one case, where the plain- 
 tiff was an uncertificated bankrupt, and his business was 
 that of a furniture broker, and the debt sued for was con- 
 tracted in the removal of the defendant's goods, for which 
 
 (q) Herbert v. Sayer, 5 Q. B. 965 ; Kitclien v. Bartsch, 7 East, 53, 
 
 (r) See ante. 
 
 (s) Beckham v. Drake, 2 H. L. C. 633. 
 
 (/) Chippendale v. Tomlinson, 7 East, 57, note (,^) ; Silk v. Osborn, i Esp. 
 140 ; Crofton v. Poole, l B. & Ad. 56S ; Beckham v. Drake, 2 H. L. C. 604. 
 
 {v) The expressions of Buller, J., in Kitchen v. Bartsch, 7 East, 57, sug- 
 gest that a large sum of money recovered by the bankrupt for his personal 
 labor, might be held by him for his trustee ; and the effect of the Bankruptcy 
 Act, 1869, ss. 4. 15, must be considered. 
 
 (x) Elliot V. Clayton. 20 I,. J. 217, Q. B.
 
 BANKRUPT AND TRUSTEE. 217 
 
 the plaintiff had procured vans, and employed assistants, 
 the court held that the demand was not a demand' for 
 mere personal labor, so as to bring the case within this 
 exception, (j) A bankrupt has, however, been allowed to 
 recover under this exception for money lent and materials 
 supplied. {2) 
 
 Set-off. (a) — A defendant's right to a set-off in an 
 action by a bankrupt's trustee depends in part upon [200] 
 the ordinary statutes of set-off, (^) and in part upon 
 the Bankruptcy Act, 1869, s. 39, which re-enacts and ex- 
 tends the Bankruptcy Act, 1849, s. 171. It is, therefore, 
 more extensive than the right possessed under the general 
 statute of set-off. In other words, a defendant in an ac- 
 tion by a bankrupt's trustee may, in general, set-off the 
 same claims which he might set-off in an ordinary action 
 by the bankrupt had he remained solvent, and also other 
 claims which could not be made the subject of a set-off in 
 an ordinary action, (c) 
 
 The following points as to the special right of set-ofil 
 as against a bankrupt's trustee should be noted. 
 
 I St. Debts can be set-off against debts as in the case of 
 an ordinary action. 
 
 2ndly. Mutual credits can be set-off. 
 
 The term " mutual credits " includes " all credits " 
 which must of their nature terminate in debts, and this 
 " means, not, as has been contended in some cases, credits 
 which must ex necessitate rei terminate in debts, but 
 
 (/) Crofton V. Toole, i B. & Ad. 568. 
 
 (2) Silk V. Osborn, i Esp. 140 ; Evans v. Brown, Tbid., 170. 
 
 (a) " Where there have been mutual credits, mutual debts, cr other mutual 
 deaiinj^s between the bankrupt and any other person proving, or claiming to 
 prove, a debt under his bankruptcy, an account shall be taken of what is due 
 from the one party to the other in re'^pect of such mutual dealings ; and iht 
 sum due from the one party shall be set-off against any sum due from the other 
 parly, and the balance of such account, and no more, slvall be claimed or paitl 
 on either side respectively ; but a person shall not be entitled under this sec- 
 tion to claim the benefit of any set-off against the property of a bankrupt in 
 any case where he had at the time of giving credit to the bankrupt notice of an 
 act of bankruptcy committed by such bankrupt, and available against him for 
 adjudication." Bankruptcy Act, 1869. s. 39. Compare with this, Bankruptcy 
 Act, 1849, s. 171 
 
 (S) 2 (leo. II., c. 22, s. 13. 
 
 (c) See 1 Griffith & Ilulmes, Bankruptcy, 2nd ed., 628.
 
 2^9 PARTIES TO ACTIONS. 
 
 credits which have a natural tendency to terminate in 
 debts, not in claims differing in nature from a debt." {d) 
 Thus a claim for a loss on a policy of insurance is a credit 
 within the statute, though not within the general statutes 
 
 of set-off. {c) 
 [201] Srdly. All debts and demands may be set-off 
 
 which are provcablc against the bankrupt's estate. (/") 
 
 4thly. Notice of an act of bankruptcy is the point at 
 which the right of set-off terminates, /. e., the defendant 
 can not set-off credit which he has given to the bankrupt 
 after notice of an act of bankruptcy, though he may set-off 
 credit given after the act of bankruptcy itself, if he did 
 not know of it. {g) 
 
 5thly. Demands, in respect of which set-off is claimed, 
 must be strictly in the same right. 
 
 In an action by the trustee of a bankrupt upon a cause 
 of action accruing to him as trustee since the bankruptcy, 
 unless it be one which arose out of a credit given by the 
 bankrupt before the adjudication of bankruptcy, and 
 before notice of an act of bankruptcy, {h) the defendant 
 can not set-off debts due to him from the bankrupt before 
 bankruptcy, {i) Nor does the statute apply where the 
 bankrupt sues as a trustee, {k) 
 
 Rule 36. — Actions on contracts made with the 
 ba#,krupt after the " close of the bankruptcy " (/) must 
 be brought by the bankrupt. 
 
 {d) Rose V. Hart, 2 Smith, L. C, 6th ed., 267, 276. 
 
 (e) Beckwith v. Bullen, 27 L. J. 162, Q. B. ; 8 E. & B. 683 ; Bullen. Plead 
 ings, 3rd ed.. 681. 
 
 (/) Rose V. Hart, 2 Smith, L. C, 6th ed., 267, 285. This, at least, was '.he 
 case under the former Bankruptcy Act (Bankrupt Law Consolidation Act, 1849, 
 s. 71). The language of the Bankruptcy Act, l86g, s. 39, does not make it cleat 
 whether all claims that are proveable are the subject of set-off. Proveable 
 claims of the nature of damages must at any rate be assessed before they can be 
 set-cff. (Ibid.) See as to proveable claims, Chapter XVIL 
 
 (g) Rose V. Hart, 2 Smith, L. C, 6th ed., 267, 275 ; Dickson v. Cass, i B 
 & Ad. 343 ; Hawkins v. Whitten, 10 B. & C. 217. 
 
 (h) Hulme v. Muggleston, 3 M. & W. 30; Bittleston v. Timmins, i (*. B 
 389. 
 
 (0 Wood V. Smith, 4 M. & W. 522 ; Bullen, Pleadings, 3rd ed., 682. 
 
 {k) Boyd V. Mangles, 16 M. & W. 337. 
 
 (/) Bankruptcy Act, 1869, s. 47.
 
 BANKRUPT AND TRUSTEE. ?.ig 
 
 When the whole propert)' of the bankrupt has been 
 realized for the benefit of his creditors, or certain 
 other events, more particularly described in the [202 J 
 Bankruptcy Act, have taken place, the Court may 
 make an order that the bankruptcy has closed, and the 
 bankruptcy is deemed to have closed at and after the 
 date of such order. (/) 
 
 After the close of the bankruptcy, (;«) the bankrupt 
 may obtain an order of discharge, or he may not obtain 
 such an order, and thus, even after the close of the bank- 
 ruptcy remain an undischarged bankrupt, (n) 
 
 A bankrupt who has obtained his discharge, has the 
 same rights as regards future contracts as a person who 
 has never been bankrupt, and is, therefore, of course, the 
 person to sue on contracts made with himself. An un- 
 discharged bankrupt has also (it would appear), after the 
 close of the bankruptcy, the same right to make contracts 
 as a person who has never been bankrupt, and no right to 
 sue on such contracts vests in the trustee, or in any per- 
 son representing the trustee. (<?) 
 
 Rule 7,y. — All the trustees must join in suing. 
 
 " The creditors may, if they think fit, appoint more 
 persons than one to the office of trustee, and where more 
 than one are appointed, they shall declare whether any 
 act required or authorized to be done by the trustees, 
 is to be done by all or any one or more of such persons ; 
 but all such persons are in this Act (/) included under 
 the term trustee, and shall be joint tenants of the property 
 of the bankrupt." {(/) 
 
 All the trustees, therefore, it would seem, must join in 
 an action for breach of contract, (r) That is to say the 
 
 (/) Bankruptcy Act. 1869, s. 47. 
 
 (w) Anrl in some cases before it. Bankruptcy Act, 1869, s. 48. 
 
 («) Bankruptcy Act, 1869, s. 54. 
 
 (o) Ihid., s. 15. 
 
 (/) /. <•., the Bankruptcy Act, 1869. 
 
 \q) Ibifl., s. 83, cl. I. 
 
 (r) Snelgrovc v. Hunt. 2 St.-irk. 424 ; Jones v. Smith, i Kx. 831.
 
 220 PARTIES TO ACTIONS. 
 
 non-joinder of a trustee, has the ordinary effect ol 
 [203] the non-joinder of a phiintiff in an action for breach 
 of contract, {s) 
 
 Rule 38. — On the removal, retirement, death, 
 &c., of a trustee, his rights pass to and vest in his 
 successor. 
 
 A trustee may from various causes, e. g., removal, 
 death, bankruptcy, &c., cease to be a trustee. (/) In this 
 case the property passes to and vests in his successor : 
 and if for any cause there is no trustee acting during the 
 continuance of the bankruptcy, the registrar of the court 
 for the time being having jurisdiction ni the bankruptcy, 
 acts as such trustee, {ti) and the bankrupt's property vests 
 in the registrar, {v) 
 
 Death or removal during action. — The death, removal, 
 &c., of a trustee during the progress of an action does 
 not cause the action to abate, {w) 
 
 Rule 39. — The bankruptcy of a plaintiff does not 
 cause the action to abate. 
 
 Formerly, if a plaintiff became bankrupt during the 
 course of action, the vesting of his rights of action in 
 the assignees could be pleaded in bar to the further 
 maintenance of the action, and the action could thus 
 be put an end to. Now, however, bankruptcy can not be 
 pleaded, unless the trustee declines to continue the action, 
 or else, though not declining to continue it, declines 
 [204] to give security for costs, {x) If the trustee gives 
 
 (s) Rule 13. 
 
 (t) Bankruptcy Act, 1869, s. 83, cl. 1-6. 
 
 {li) Ibid., cl. 3. 
 
 {v) Ibid., cl. 6. 
 
 (w) This was expressly provided under Bank. Law Con. Act, 1849, s. 157 
 Compare Bankruptcy Act, 1869, s. 83, cl. 7. 
 
 {x) C. L. P. Act. 1852, s. 142. It should be noticed that C. L. P. Act. 1852. 
 ss. 135-142, have no application to actions commenced after bankruptcy. Stan 
 ton V. Collier, 3 E. & B. 274 ; 23 L. J., 116. Q. B.
 
 BANKRUPT AND TRUSTEE. 221 
 
 security for costs, and proceeds with the action, it 
 should be carried on in the name of the bankrupt up to 
 final judgment, {y) 
 
 Rule 40. — If an action be brought by the bank 
 rupt in cases in which the trustee must sue, or b> 
 the trustee in cases in which the bankrupt must sue, 
 the error is fatal. 
 
 If a bankrupt sues, e. g., for a debt owing to him before 
 bankruptcy, or his trustee sues, e. g., on a contract in 
 which the bankrupt has no beneficial interest, the action 
 must fail, for in either case it is brought by a plaintiff who 
 has no cause of action ; and the error is one which does 
 not admit of amendment, {s) since the law does not permit 
 the substitution of a right for a wrong plaintiff, {a) 
 
 {y) Day, C. L. P. Act, 3rd ed., 123 
 
 {z) See Chapter XXXIV. 
 
 (a) Liqiiidaiion by Arrangement. Under the Bankruptcy Act, 1869, there 
 may take place instead of a bankruptcy a liquidation by arrangement. Under 
 such an arrangement a trustee is appointed, whose powers and duties are thus 
 defined : — The trustee under a liquidation shall have the same powers and per- 
 form the same duties as a trustee under a bankruptcy, and the property of the 
 debtor shall be distributed in the same manner as in a bankruptcy ; and with 
 the modifications hereinafter mentioned, all the provisions of this Act shall, so 
 far as the same are applicable, apply to the case of liquidation by arrangement 
 in the same manner as if the word 'bankrupt ' included a debtor whose affairs 
 are under liquidation, and the word 'bankruptcy' included liquidation by 
 arrangement ; and, in construing such provisions, the appointment of a trustee 
 under liquidation siiall, according to circumstances, be deemed to be equivalent 
 to, and a substitute for, the presentation of a petition in bankruptcy, or the 
 service of such petition, or an order of adjudication in bankruptcy." Bank- 
 niptcy Act, 1869, s. 125, cl. 7.
 
 222 PARTIES TO ACTIONS. 
 
 CHAPTER X. 
 
 EXECUTORS, ADMINISTRATORS, AND HEIRS. 
 
 Rule 41. — The personal representatives of a 
 I ^ceased person (J. e., his executors or administra- 
 t >rs) can sue on all contracts of whatever description 
 n)ade with him, whether broken before or after his 
 death. 
 
 The rights and liabilities of a deceased person are 
 represented by two classes of representatives. The first 
 class consists of his personal representatives, i. e., his 
 executor or executors, or administrator or administra- 
 tors, (a) The second class consists of real representatives, 
 /. e., the heir or devisee. The personal representatives 
 entirely represent the deceased, and possess, speaking 
 generally, all his rights, and are liable for all his responsi- 
 bilities, in so far as they have assets {i. e., to the amount 
 of his personal estate), the rights and liabilities of which 
 they in fact represent, {b) Co-executors (or co-admin- 
 istrators) have a joint interest, and incur joint liabilitie 
 and €tand in many respects in the position of partners. 
 The real representative, i. e., the heir or devisee, repre- 
 sents the deceased less completely than does an 
 [206] executor. The heir or devisee represents in fact 
 the rights and liabiHties of the real estate. He can 
 sue only in respect of injuries to it, and is liable only in 
 
 {a) The powers and liabilities of executors piid administrators are, speaking 
 generally, the same. The executor is a representative appointed by the will ; 
 the administrator is the representative £jenerally of an intestate, and appointed 
 by letters of administration issued by the Ci.urt of Probate. See as to an ad- 
 ministrator cum testamento annexe, I Williams, Executors, 6th ed., 490. 
 
 ^b) Compare 2 Williams, Excutors, 6th ed., 1529, and following.
 
 EXECUTORS AND ADMINISTRATORS. 223 
 
 so far as the real estate has come to him, and as it is 
 bound. 
 
 The personal representatives, as representing the per- 
 sonal estate of the deceased, may sue on all contracts with 
 him, whether broken in his lifetime or subsequently to his 
 death, the breach of which occasions damage to the per- 
 sonal estate, {c) 
 
 " With respect to such personal actions as are founded 
 upon any obligation, contract, debt, covenant, or other 
 duty, the general rule has been established from the 
 earliest times, that the right of action on which the 
 testator or intestate might have sued in his lifetime sur- 
 vives his death, and is transmitted to his executor or 
 administrator. (^/) Therefore it is clear that an executor 
 or administrator shall have actions to recover debts of 
 ever}' description due to the deceased, either debts ot 
 record, as judgments, statutes, or recognizances; or debts 
 due on special contracts, as for rent ; or on bonds, cove- 
 nants, and the like, under seal; or debts on simple con- 
 tracts, as notes unsealed, and promises not in writing 
 either express or implied." {e) Again, " it is claar that 
 in many cases an action on which the deceased himsell 
 could not have sued may accrue to the executor or 
 administrator in his own time, upon a contract made with 
 the testator or intestate in his lifetime," (/) or, in other 
 words, that he can sue on contracts made with the 
 deceased but broken after his death. 
 
 Thus, if X. enters into a contract with M. by deed, or 
 if X. gives a bill to M., or contracts with M. by word ot 
 mouth, or does any act which gives M. a right to 
 sue him in the form of an action for breach of con- [207] 
 tract, though the act may partake of the nature of 
 a tort, {g) A., the executor of M., may sue X., though the 
 
 {c) Kaymond v. Fitch. 2 C. M. & R. 596, 597, jiKl(;mciit of TiNDAl., C. J. , 
 Broom, Maxims, 4th ed., 870. 871. 
 
 ((/) The right of executors to sue is extended to admiiiisliators by statute, 
 3T Edw. III., s. I, c. II. 
 
 (<•) I Williams, Executors, 6th ed., 739, 740. 
 
 (/) Il,id., 827. 
 
 (g) See ante ; Knights v. Quarles, 2 B. & B. 102 ; 4 Moo. 532. See Alton 
 v. Midland Kail. Co.. 19 C. B.. N. S. 213 ; 34 \.. J. -jg2. C. I'
 
 224 'PARTIES TO ACTIONS. 
 
 cause of action accrued during INI.'s life, and, A. may also 
 sue X., supposing the contract made with M. was not 
 broken until after M.'s death, and thus the cause of action 
 (//) did not arise during M.'s life. The personal represen- 
 tatives, further, so completely represent the deceased, that 
 (generally speaking) an executor or administrator may 
 sue on a contract in which he is not named. Thus, if 
 money be made payable to A. without naming his ex- 
 ecutor, yet his executor or administrator can have 
 an action for it. So, if money be payable to A. or his 
 assigns, his executor may sue for it, as he is assignee at 
 law. (/) 
 
 The executor or administrator is the only representa- 
 tive of the deceased that the law will regard in respect of 
 his personalties, and no words introduced into a contract 
 or obligation can transfer to another his exclusive right 
 of representation. Thus A., as administrator of M., 
 brought an action upon a promise made to M. to pay 
 upon M.'s marriage, " to M., his heirs or executors," fifty 
 guineas, and the action was held to be rightly brought, 
 although the plaintiff did not show that the money had 
 not been paid to the intestate's heir; the ground of the 
 decision was that by the law all personalties and rights to 
 personalties are given to the executors or administrators, 
 as all realties and rights to realties are given to the heir ; 
 the executors or administrators being a man's representa- 
 tives in respect of his personalties in like manner as the 
 heir in respect of his realties ; (/) and so, if X. binds him- 
 self to M. to pay a certain sum of money to M. or 
 [208] his heirs, M.'s executors or administrators, and not 
 his heirs, have a right to the money, and should 
 sue for it. {k) So, again, an executor, &c., is the person 
 to sue upon a promise made to the deceased for the ex- 
 clusive benefit of a third party. (/) 
 
 {h) See ante. 
 
 {i) I Williams, Executors, 6th ed., 742 ; Com. Dig., Administrator (B. 13). 
 (J) Devon v. Pawlett, 11 Vin. Abr. 133, pi. 27 ; l Williams, Executors, 7th 
 ed., 740 
 
 (k) S. P. Fitz., N. B , 120, I., 9th ed. ; i Williams, Executors, 6lh ed, 741. 
 (/) Ibid., 759, 76c; Rules 10, 11.
 
 EXECUTORS AND ADMINISTRATORS. 22$ 
 
 Exception i. — Contracts, the breach of which occasioned 
 merely personal suffering to the deceased. (w) 
 
 No one can sue for a breach of contract where the 
 damage occasioned consisted entirely in the personal 
 suffering of the deceased. Thus no action can be brought 
 for a breach of promise of marriage to the deceased, {n) 
 " for executors and administrators are the representatives 
 of the temporal property, that is, the debts and goods of 
 the deceased, but not of their wrongs, except where those 
 wrongs operate to the temporal injury of their personal 
 estate." {p) " So with respect to injuries affecting the 
 life and health of the deceased : all such as arise out of 
 the unskillfulness of medical practitioners ; the imprison- 
 ment of the party brought on by the negligence of his 
 attorney ; generally speaking, no action can be sustained 
 by the executor or administrator on a breach of the im- 
 plied promise, by the person employed to exhibit a proper 
 portion of skill and attention : such cases being, in sub- 
 stance, potions for injuries to the person." (/) 
 
 If a breach of contract affects, not onl}^ the person of the 
 deceased, but his per-sonal estate also, the executor can 
 sue for the consequential damage, {q) Where A , the 
 administrator of M., sued X. for negligence as attor- 
 ney of M. in investigating the title of certain lands [209] 
 which were to be conveyed to M., in consequence 
 of which M. took an insufficient title, whereby his personal 
 estate was mjured, the action was held to lie, and the 
 court held "that it made no difference in this case 
 whether the promise was express or implied, the whole 
 transaction resting on a contract that though perhap? 
 the mtestate might have brought case. {r)or assumpsit, (j) 
 
 (w) Conf. an/f. 
 
 (n) Chamberlain v. Williamson, 2 M. & S. 408. 
 {0) Ibid., 415, judgment of Ellenborough, C. J. 
 (/>) I Williams, Executors, 6th ed., 753. 
 
 (y) Broom, Maxims, 4th ed., 871, 872 ; i Williams, Executors, 6th ed., 751 
 752. 
 
 (r) /. e., an action for tort, sec ante. 
 
 (s) I. e., an action for lircach of contract, see ante.
 
 226 PARTIES TO ACTIONS. 
 
 at his election, assumpsit being the only remedy for the 
 administrator it was very necessary that the action should 
 be maintained. ... It was further observed, that if a 
 man contracted for a safe conveyance by a coach, and 
 sustained an injury by a fall, by which his means ot 
 improving- his personal property were destroyed, and that 
 [iropertv in consequence injured, though it was clear that 
 he, in his lifetime, might at his election (/) sue the coach 
 proprietor in contract or in tort, it could not be doubted 
 that his executor might sue in assumpsit for the conse- 
 quences of the coach proprietor's breach of contract." {u) 
 
 Exception 2. — Contracts limited to the lifetime of the 
 deceased. 
 
 On a contract, expressly limited to the lifetime of the 
 deceased, it is clear that no action can be brought by 
 (or against) {u) his representatives for any alleged breach 
 of it after his death. 
 
 But there exist also contracts which are held as a 
 matter of law to be determined by the death of either 
 party. The ground on which they are held so de- 
 [210] terminable is, that they are considered to be 
 obviously " founded on personal considerations," 
 i. e., made with reference to the personal qualities of the 
 parties, {x) 
 
 Under the head of personal contracts fall most ob- 
 viously undertakings to do some act, e. g., write a book, 
 
 (/) See ante, 
 
 {}() Knights V. Quarles, 2 B. & B. 104, 105. An action, might, perhaps, he 
 brought even for a breach of promise of marriage, if the executors could allege 
 injury to the deceased's personal estate as a consequence of the breach of prom 
 ise See Chamberlain v. Williamson, 2 M. & S. 408 ; Beckham v. Drake, 8 M 
 & W. 846, 854, ccmpared with Alton v. Midland Rail. Co., 34 L. J. 292. C. P. • 
 19 C. B., N. S. 2T3. See as to actions by executors where the deceased has 
 been killed through negligence of the defendant, Chapter XXIV. 
 
 (v) Chapter XVIII. 
 
 (x) The principle applies to the liabilities, no less than the rights of execu- 
 tors, and can therefore be illustrated as well by cases of actions brought against 
 executors as of actions brought by them.
 
 EXECUTORS AND ADMINISTRATORS. 227 
 
 paint a picture, and, it is said, build a lighthouse, (7) the 
 performance of which depends upon the skill or talent of 
 a particular person. 
 
 All contracts, again, ot apprenticeship fall under the 
 description of personal contracts. On the death of the 
 master, the apprentice is, unless there be something spe- 
 cial in the agreement, (-sr) released from the obligation to 
 serve, and the executors are released from the obligation 
 to teach, though not, it should be observed, from cove- 
 nants to maintain him. {a) 
 
 All contracts of agency are included within the same 
 class. Thus, where A. is employed as an agent for the 
 sale of an article, he can not, on the death of his employer, 
 sue the latter's representatives for work done as agent 
 after the employer's death, {b) 
 
 So again, where A. was hired by M. to serve as farm 
 bailiff at weekly wages, and received among other advan- 
 tages a residence in a farm house, and it was part of the 
 contract that the service should be determinable by 
 six months' notice, or payment of six months' wages, 
 it was held that M.'s representative was not bound either 
 to continue A. in her service, or to pay him six month's 
 wages, {c) 
 
 Exception 3. — Covenants real broken during the life- [211] 
 time of tlie deceased. 
 
 ' Covenants real," as the term is here used, {/) mean 
 
 {y) 2 Williams, Executors, 6lh ed., 1593, n. (/). Contrast the agreement to 
 build a house, which it is said, a man's executors are bound to perform (Quick- 
 V. Ludborrow, 3 Bulst. 30;. 
 
 (z) Cooper v. Simmons, 7 H. & N. 707 ; 31 L, J. 13S. ^I- C. 
 
 (a\ 2 Williams, Executors, 6th ed., 1631. 
 
 {li) Companari v. Woodburn. 15 C. B. 400 ; 2.; L. J. I3> C. F. 
 
 (c) Farrow v. Wilson, L. K. 4, C. P. 744. Though a contract is limited to 
 the lifetime of the deceased, his representatives may sue and be sued for 
 breaches committed before his death (seeStubbs v. Holywell Kail. Co. L. R. 2. 
 Ex. 311 ; 36 L. J. 166, Ex.), and a contract, which appears to be prima facie a 
 personal one, may be made by its express terms l<> give rights to, or impose lia- 
 bilities upon, the representatives of the deceased (Cooper v. Siaimons, 7 li. & 
 N. 707; 31 L.J. 138, M. C). 
 
 (/) It may be employed as including all covenants which run with the land. 
 >f these, those which affect the freehold descend to the real representatives,
 
 228 PARTIES TO ACTIONS. 
 
 " covenants which both run with the land and descend to 
 the heir or devisee," i. e., covenants which affect the 
 freehokl. These covenants will go to the heir not only 
 when he is not named, but where the covenant is made 
 with the covenantee and his executor; [g) and the heir is 
 clearly the person to sue for any breach of such covenants 
 committed after the death of the deceased. 
 
 Where, in short, the benefit of covenants annexed to 
 an estate in land, (//) e. g., for title, to repair, and the like, 
 is assigned by law to the real representative, he must sue 
 for breaches committed after the death of the deceased, 
 and the sole question is whether the personal or the real 
 representative is the right plaintiff in an action for brea:hes 
 committed during the lifetime of the deceased. The rule 
 on this point seems to be, (?) that if there has been a 
 formal breach of such covenants during the ancestor's 
 lifetime, but the substantial damage has taken place after 
 his death, the real and not the personal representative is 
 the proper plaintiff in an action on the covenant. " Ac- 
 cordingly where an executor brought an action upon 
 covenants for title contained in a conveyance of land to 
 the testator, charging breaches in the testator's lifetime, 
 but not showing any damage to the personal estate, 
 [212] it was held that he could not recover; (/) and the 
 devisee of the same land having brought an action 
 for the same breaches of the same covenants, it was held 
 that he was entitled to maintain the action, and to re- 
 cover in respect of the deterioration in the value of the 
 land by reason o^ the defective title." {k) The executor, 
 on the other hand, may sue for a breach of a covenant 
 real, though committed in the lifetime of the covenantee, 
 
 those which aftect chattel interests, to the personal representatives. Thus, 
 if a feoffment be made in fee. and the feoffor covenant to warrant the land 
 to the feoffee and his heirs, the heir of the feoffee is the person to take advan- 
 tage of the covenant (Touch. 178). 
 
 ( g) I Willisms, Executors, 6th ed., 753, 754 
 
 {h) See ante. 
 
 (i) Raymond v. Fitch, 2 C. M. & R. 596, judgment of Lord Abinger, C. 
 B. ; Kingdon v. Nottie, i M. & S. 355. 
 
 (7) Kingdon v. Nottie, i M. & S. 355. 
 
 {k) Leake, Contracts, 639; and see Kingdon v. Nottie, 4 M. i S. 53.
 
 EXECUTORS AND ADMINISTRATORS. 229 
 
 in respect of any damage caused thereby to the personal 
 estate. (/) 
 
 On a "collateial covenant," by which is here meant a 
 covenant which, though it may concern the realty, does 
 not run with the land, the executor or administrator must 
 sue. Thus on a covenant in a lease not +0 cut down trees 
 (the trees being excepted from the demise, and the co\e- 
 nant therefore being collateral and not running with the 
 land), the executor was held entitled to sue for a breach 
 committed during the testator's lifetime, and in such a 
 case no special damage to the personal estate need be 
 alleged, (m) 
 
 Many covenants, moreover, which, in the most general 
 sense of the words, " run with the land," descend, not to 
 the heir, but to the executor, that is to say, they are not 
 "covenants real." These covenants are not collateral, 
 for they are annexed to an estate in land, but the estate, 
 not being a freehold, does not descend to the heir, but to 
 the executor or administrator. Thus where the deceased 
 is entitled to a reversion for years, and a covenant has 
 been made with him as lessor, the executor or adminis- 
 trator is the only party capable of suing on such a cove- 
 nant ; (n) and the executor of a tenant for years is 
 expressly within the statute 32 Hen. VIII. c. 34, [213] 
 and may maintain an action of covenant against the 
 assignee of the reversion, (p) 
 
 The effect and extent of this exception from the general 
 rule may be seen from the following examples : — 
 
 jVL, the deceased, is possessed of a freehold, and X. 
 has covenanted with him for title. The covenant is broken 
 after M.'s death ; the heir is the only person who can 
 sue for the breach. Suppose, on the other hand, the 
 covenant to be broken before M.'s death, the right per- 
 
 (/) l.eake, Contracts, 639, 640 ; Kingdon v. Nottle, i M. & S. 355. 364 • 4 
 Ibid., 53. 57; Knights V. Quarlcs, 2 B. & B. I02, 105; I Williams, Executors 
 6lh cfl.. 757. 
 
 (w) Raymond v. Fitch, 2 C. M. & R. 588. Compare Ricketts v. Weavei 
 la M. & W. 718. 
 
 («) Mackay V. Mackreth, 2 Chit. 461. 
 
 (/>) 1 Williams, Executors. 6th cd., 761.
 
 230 PARTIES TO ACTIONS. 
 
 son, prima facie, to sue is the heir, but the executor can 
 sue it" he can show damage resulting to the personal estate 
 of M. 
 
 Again, M. is possessed of an estate for years, and X. 
 nas covenanted with him for title, and the covenant is 
 broken both before and after the death of M. The exec- 
 utor is the only person who can sue. 
 
 Lastlv, X. has entered into a covenant with M., the 
 deceased, which is not of a kind to run with the laud ; 
 the executor is the only person who can sue for a breach 
 of such covenant, whether committed before or after M.'s 
 death. 
 
 Lessor and Lessee. 
 
 1st. For arrears of rent due before the death of the 
 lessor, the executor must in all cases sue, whatever the 
 nature of the lessor's interest in the land, {q) 
 
 2d. Where rent becomes due after the death of the 
 lessor, the proper party to sue for it is the person to 
 whom the lessor's interest in the land, or, in other words, 
 the reversion, passes. If the reversion is a chattel inter- 
 est, e. g., a lease for years, the executor should sue, and so, 
 too, where no reversion remains with the lessor. If, on 
 the other hand, the reversion is a freehold interest, e. g., 
 an estate for lives, the heir must sue. 
 
 3d. Where the lessor dies before the rent for any 
 [214] given period has become actually due, i. e., during 
 the period intervening between one rent day and 
 another, though the heir is, if the reversion goes to him, 
 the proper person to sue for the whole of the rent when 
 It becomes due, yet the rent when recovered is, under 4 
 Will. IV., c. 22, s. 2, apportioned between the executor 
 and the heir. 
 
 The effect of the statute is that the person to whom 
 the reversion passes, who before the Act would have been 
 entitled to the whole of the rent, still sues for it. The 
 executor, &c., however, can recover from him the por- 
 
 f<7) Ibid., 771-
 
 EXECUTORS AND ADMINISTRATORS. 231 
 
 tion of the rent due for the period preceding the lessor's 
 death. 
 
 The statute applies only to leases granted after its 
 passing. 
 
 Exception 4.— Contracts on which the deceased must have 
 sued jointly with other persons, {r) 
 
 SUBORDINATE RULE I. 
 
 An executor can commence an action before probate ; bnt an 
 administrator can 7iot commence an action before letters 
 of administration granted to him. 
 
 The interest of an executor in the estate of the de- 
 ceased is derived exclusively from the will, and vests in 
 the executor from the moment of the testator's death, {s) 
 and his title dates or relates back to the date of the death. 
 An administrator, on the other hand, derives his author- 
 ity entirely from the appointment of the court; (/) and no 
 right of action in general accrues to him until he has sued 
 out letters of administration. One consequence of this is 
 that an executor can commence an action before probate. 
 It is true that he can not maintain an action without 
 obtaining probate, {u) but he may advance an [215] 
 action as far as that point where the production of 
 probate becomes necessary, and it will be sufficient if he 
 obtains probate in time for that exigency. (/) He can 
 issue a writ, declare, &c., without taking out probate, and 
 can support his declaration by showing at the trial that he 
 has proved the will. {£) But if an administrator commences 
 
 (*■) .See Rule i6 for explanation. 
 
 (c) Williams, Executors, 6th ed., 595, 601. 
 
 (/) Il)i(l., 389, 596. 
 
 (m) See, however, as to actions grounded on actual posscsMon, Chapter 
 XIX. 
 
 (/) I Williams, Executors, 6th ed., 296. 
 
 (z) If, linwcvcr, ail executor commences an action before probate, the de- 
 fendant may apply to the court to slay proceedings until proi)atc is taken out 
 and notice thereof given to the defendant aVebb v. AlWins, 14 C. B. 401 ; 23 
 L. J. 96, C. P.).
 
 !32 
 
 PARTIES TO ACTIONS. 
 
 an action before letters of administration are granted, he 
 must fail, for at the time the action was brought he had no 
 right of action, and can not support his claim at the trial 
 by showing that he sued out letters of administration after 
 the commencement of the action, {a) 
 
 SUBORDINATE RULE II. 
 
 On the death of a plaintiff the action can be carried on by his 
 executor or administrator. 
 
 The death of a plaintiff does not now, as it did for- 
 merly, cause an action to abate, {p) ' or put an end to it. 
 
 {a) I Williams, Executors, 6th ed., 3S9, 390. 
 
 The representative of a foreigner must, if he sues in a representative charac- 
 ter, obtain probate or letters of administration in order to maintain an action 
 in this country (Vanquelin v. Bouard, 15 C. B., N. S., 341 ; 33 L. J. 78, 
 C. P.). 
 
 {b) C. L. P. Act, 1852, s. 135. 
 
 I. The code provides that an tuted as a party by ex parte motion, 
 
 action shall not abate by the death proof of his appointment and quali- 
 
 or disability of a party, or by the fication being made. Taylor v. 
 
 transfer of any interest therein, if W. P. Ry. Co., 45 Cal. 336 ; Stock- 
 
 the cause of action survive or. con- ing v. Hanson, 22 Minn. 545. 
 
 tinue. Moss v. Shear, 30 Cal. 475 ; 
 Camarillo v. Fenlon, 49 Cal. 206; 
 Elliott V. Teal, 5 Sawyer, 190. 
 
 The court may allow the action 
 to be continued by or against the 
 representative or survivor in inter- 
 est of any party dead or disabled. 
 
 The death of the nominal plain- 
 tifif pending suit will not cause 
 abatement. McNaffy v. Share, 2 
 Pa. 376 ; Grand Gulf Bank v. Jef- 
 fers. 12 Sm. & M. 487. 
 
 But all personal actions die with 
 the person. Keite v. Boyd, 16 
 
 and in case of any other transfer of Serg. & R. 300 ; Holmes v. Moor^, 
 
 5 Pick. 258; Baker v. Dansbee, 7 
 Heisk. 230. 
 
 Under the Ohio Civil Code, \ 399, 
 which provides that " no action 
 pending in any court shall abate by 
 the death of either or both the par- 
 ties thereto, except an action for 
 libel or slander, * * * which 
 shall abate by the death of the de- 
 fendant," an action for slander does 
 not abate by the death of the plain- 
 tiff during its pendency. Alpin v. 
 Merton, 21 Ohio St. 536. 
 
 interest, substitution of the trans- 
 feree will be allowed or the action 
 may be continued in the name of 
 the original party. Cox v. New 
 York Cent., &c., R. R Co., 63 N. 
 Y. 415; Walker v. Felt, 54 Cal. 
 386 ; Chicasaw Co. v. Pitcher, 36 
 Iowa, 596; 2 Utah, 272; French v. 
 Edwards, 4 Sawyer, 128. 
 
 The death of a party may be 
 suggested at any stage of the suit. 
 Judson V. Love, 35 Cal. 469. 
 
 His administrator may be substi-
 
 EXECUTORS AND ADMINISTRATORS. 211 
 
 If the cause of action is one which survives to the repre- 
 sentatives, that is to say, if it is one on which the executor 
 or administrator might commence an action, the executor, 
 &c., may continue it by taking the proceedings pointed 
 out by the Common Law Procedure Act, 1852, s. 137. 
 
 Almost all rights of action grounded on contract pass, 
 as appears from the foregoing rule, to the personal repre- 
 sentative, who, therefore, may continue such actions when 
 commenced by the deceased. 
 
 He can not (it is conceived) continue an [216] 
 action for a breach of promise of marriage, or per- 
 haps on a covenant real, where no actual damage has 
 accrued from the breach of the covenant, since such 
 causes of action do not pass to him. {c) 
 
 If, however, the plaintiff die between verdict and 
 ludgment, the executor, &c., may enter up judgment even 
 though the cause of action would not have survived, {d) 
 
 Rule 42. — An executor or administrator : — 
 
 1. Must sue in his representative character on all 
 contracts made with the deceased,' 
 
 2. May sue either in his representative or in his 
 personal character on contracts made with him as 
 executor after the death of the deceased.'' 
 
 {c) See Exceptions i and 3, ante. 
 
 \d) Palmer v. Cohen, 2 B. .& Ad. q66 ; Kramer v. Waymark, L. R. i, Ex. 
 241. Sec generally, Day, C. L. P. Acts, 3rd ed., 115- 121. 
 
 1. Luques v. Thompson, 26 Me. 254; Lawrence v. Vilas, 20 Wis. 
 527; Webb V. Fish, 4 N. J. L. 374; 405; Rector v. Langham, i Mo. 
 Lucas V. Byrne, 35 Mo. 49; Alex- 560; Hemphill v. Hamilton, 11 
 andcr v. Wriston, 81 N. C. 193; Ark. 425 ; Claiborn v. Yeoman, 15 
 Shaw V. Wilkins. 8 Humph. 649; Tex. 46; or in his individual capac- 
 Kellogg V. Malin, 62 Mo. 430; ity ; Cobb v. Wood, 8 Cush. 230; 
 Mohr V. Sherman, 25 Ark. 425; Leland v. Manning, 4 Hun, 9 ; Bur- 
 Sanford V. McCreedy, 28 Wis. 106. ton v. Slaughter, 26 Gratt. 723; 
 
 2. May sue in his fiducir.ry ca- McGehee v. Slater, 5 Ala. 436; 
 pacity. Carlisle v. Burlcy, 3 Mc. Laycock v. Oleson, 60 111. 31 ; Hall
 
 234 PARTIES TO ACTIONS. 
 
 When the cause of action {/) arose wholly or in part 
 in the lifetime of the deceased, the representative must 
 declare in his representative character ; (/) but where the 
 cause of action arose wholly after the death, the executor 
 may sue as such or not at his option, {g) provided 
 that the money to be recovered would be assets of the 
 estate, {h) 
 
 These principles, applied to actions on contract, pro- 
 duce the following results: — 
 
 I St. On all contracts made with the deceased, wnether 
 broken before or after his death, an executor or adminis- 
 trator must sue in his representative character, (z) 
 [217J 2nd. When a contract is made with an executor, 
 
 he may sue either in his own name personally (as 
 being- the party contracted with), or in his representative 
 character, if the money to be recovered would be assets 
 of the estate ; (/) and this he may do not only in cases 
 where the consideration flows from the deceased, but also 
 m cases where the consideration flows directly from him- 
 self as executor. Thus an executor may declare as such 
 not onl}^ on an account stated with him as executor con- 
 cerning money due to the testator from the defendant, 
 
 {e) See ante 
 
 (/) Bullen, Pleadings, 3rd ed., 153; 2 Williams, Executors, 6lh ed., 
 1727. 
 
 ig) Ibid. 
 
 (/4) Ibid. 
 
 {{) But see Gallant v. Boutflower, 3 Doug. 34. 
 
 (0 Bullen, Pleadings, 3rd ed., 153. 
 
 V. Pearman, 20 Tex. 170; Lassiter 287; Shawhan v. Long, 26 Iowa, 
 
 V. Obin, II Ark. 450; and so on a 490; Huey v. Huey, Id. 528. 
 judgment obtained by the admin- When an administrator takes a 
 
 istrator. Page v. Cravens, 3 Head, note in his representative capacity, 
 
 583 ; Hunt V. Lisle, 6 Yerg. 417. in the event of his death, his execu- 
 
 An executor leasing premises be- tor has his action thereon in his own 
 
 longing to the estate, in his in- name. Block v. Dorman, 51 Mo. 
 
 dividual capacity, may recover 31; McCoy v. Gilmore, 7 Ohio, 
 
 thereon in the same capacity. 270; Thompson v. Badham, 70 N. 
 
 Kingsland v. Ryckman, 5 Daly, C. 142 ; Stanley v. Stanley, 42 Conn. 
 
 14; McDowell V. Hendrix, 71 Ind. 540.
 
 EXECUTORS AND ADMINISTRATORS. 235 
 
 but also on an account stated with him as executor con- 
 cerning money due to him as executor, and raa)^ maintain 
 an action as executor for money lent by him as executor. 
 So where the testator agreed to do certain work, and 
 died before the work was begun, and the executors did 
 the work, using the testator's materials, and brought an 
 action in their representative character for work and 
 labor done, and goods sold and delivered by them, as 
 executors, it was held that they might recover the value 
 of the materials, and perhaps also for work and labor as 
 executors; {m) and so where a coat had been ordered by 
 the defendant of a tailor, and had been cut out and tacked 
 togfether and tried on during the tailor's lifetime, but was 
 finished and delivered after his death by his administra- 
 trix, it was held that she could not sue for the price ot 
 the goods as for goods sold and delivered by the intestate, 
 but that the proper form of action was for goods sold and 
 delivered by her as administratrix. {71) 
 
 An executor or administrator must, when suing as 
 executor, &c., claim the amount due to him accord- 
 ing to the facts of the case, as an amount due [218] 
 either to the deceased, or to the plaintiff as execu- 
 tor. Where, for example, a debt is due to M. before his 
 death, A., his executor, must claim it as executor, de- 
 scribing it as a debt due to M. Where, on the other 
 hand, money is due to A. as executor, in consequence of 
 a contract made with A. after the death of M., A. may 
 claim it either in his own name, or as executor ; but if he 
 claims it in the latter character, he musi describe the 
 money claimed, not as money due to M., but as money 
 due to himself as executor. 
 
 Set-off. — I St. In an action by an cxecuior or adminis- 
 trator, as such, for debts due to the deceased, the defend- 
 
 (/«) Mar>hall v. IJrondluirsi, i C. & J. 403; Edwaiil v. Grace. 2 M. & W. 
 190. 
 
 («) Werner v. Humphreys. 2 M. & G. S53 ; lO L. J. 214, C. P. See i Wil- 
 liams. Executors, 6ih e-i., 823-827. If an executor continues to cany on the 
 business of the deceased, and inters into contracts in the course of doing so, it 
 would seem that he can not sue in his representative character, but must .sue in 
 bis own right. Bolingbrokc v. Kerr, I,. K. i, \'.\. 222.
 
 J 30 PARTfHS TO ACTIONS. 
 
 int can set-ofT debts due to him from the deceajed, but 
 can not set-oIT debts due to him from the executor or ad- 
 ministrator in his private capacity. 
 
 2nd. In an action by an executor, &c., in his represen- 
 tative character, for debts due to him as executor, after 
 the death of the deceased, the defendant can not set-off 
 debts due from the deceased to the defendant. (/) 
 
 3rd. In an action for debts by an executor, «!ii:c., in his 
 own name, the defendant can not set-off debts due to him 
 from the deceased, but can set-off debts due to him from 
 the plaintiff, {q) 
 
 SUBORDINATE RULE. 
 
 An executor or administrator can not Join claims made in 
 his representative tvith claims made in his personal 
 character. 
 
 A., the executor of M., can not in the same action claim 
 
 debts or damages due to him personally, together with 
 
 debts, &c., due to him as executor of M. A declaration 
 
 in which such claims were joined would be wholly 
 
 219] bad, or, in other words, demurrable, is) He may, 
 
 however, join any claims in respect of which the 
 
 money recoverable would be assets ; he may, e. g., claim 
 
 as executor debts due to M., and debts due to himself as 
 
 executor of M. {t) An executor, when he sues in his own 
 
 name, can join any claim which he makes as an individual 
 
 Rule 43. — Co-executors (71) or co-administrators 
 (^x) must all join as plaintiffs in an action, 
 
 (/) 2 Williams, Executors, 6th ed., 1732, 1803; Rees v. Watts, 11 Exch. 
 410 ; 25 L. J. 30, Ex. (Ex. Ch); Watts v. Rees. 9 Exch. 6g8 ; 23 L. J. 238, 
 Ex.; Scholfield v. Corbett, 11 Q B 779; Tegetmeyer v. Lumley, Willes, 
 264, n. 
 
 (q) Bullen, Pleadings, 3rd ed., 153. 
 
 (:) 2 Wms. Saund. I17 e; Bullen, Pleadings 3rd ed., 152; Davies v 
 Davies, i H. & C. 451 ; 31 L. J. 476, Ex. ; 2 Williams, Executors, 6th ed. 
 1729. 
 
 {t) Edwards v. Grace, 2 M. & W. 190; Dowbiggin v. Harrison, 9 B. & C 
 666 ; Bullen, Pleadings, 3rd ed., 152. 
 
 (m) 2 Williams, Executors, 6th ed., 895. 
 
 {x) Ibid.. 852.
 
 EXECUTORS AcVD ADM IXISTRA TORS. 237 
 
 Co-executors have community of mterest m the goods, 
 or personal property, of the deceased, and therefore must 
 all join in suing, even though some be infants {y) or 
 bankrupts, {z) or have not proved the will, {a) And 
 where one of several co-executors is a married woman, 
 she and her husband must join in the action, {b) 
 
 If one of several executors sues alone, the defendant 
 can take advantage of the error by a plea in abatement 
 oniy. {c) 
 
 Ei*^cpuon I. — Where a contract is made with sonie of sev 
 era! co-executors only. 
 
 If a c Mitract is made with some alone of several co- 
 executors, those only can sue on the contract with 
 whom it is made. Where, for example, A., B., and [220] 
 C. were co-executors, and A. and B. authorized an 
 attorney to receive rents due to the estate, and to give 
 receipts in their name, it was held that C. could not join 
 in an action against the attorney for the money collected. 
 {/) Whether in any particular instance a contract was 
 made with some only of several executors, e. g., A. and 
 B., in their individual characters, or with some, e. g., A. 
 and B. as agents for the others, and therefore with all of 
 them, is a question of evidence. (/) 
 
 Exception 2. — Where an executor renounces the executor- 
 ship. 
 
 Under 20 & 21 Vict. cap. yy, s. 79, an executor may 
 renounce probate. When he has done this he can not. 
 
 (y) Smith v. Smith, Velv. 130. 
 
 {z) Compare i Williams, Executors, 6th ed., 226, 227 
 
 (a) Brookes v. Stroud, I Salk. 3 ; 2 Williams, Executors, 6th ed., 894. 
 
 {b) See ante. 
 
 {c) Cabell v. Vaughan, I Wms. Saund., 291 /; 2 Williams, Executors, 6ih 
 ed., 1725. This is an exception to the general rule, that the non-joinder of a 
 plaintiff in an action ex contractu is a fatal error. See Cliapter .X.XXIV. 
 
 (e) Heath v. Chilton, 12 M. & VV. 632. 
 
 {/) Hroom, Parties, s. ijl a.
 
 238 PARTJES TO ACTIONS. 
 
 of course, join in any action brought by the other execu- 
 tors. 
 
 SUBORDINATE RULE. 
 
 Cm' co-executor or co-administrator can not bring an action 
 against another concerning matters connected with the 
 executorships 
 
 Generally speaking, it is clear that one executor can 
 not sue or be sued by his co-executor. { g) This is a 
 result of the fact that co-executors are jointly interested 
 [\\ the property of the deceased, and is an exemplification 
 of the general rule, that the same person can not be both 
 plaintiff and defendant. Hence, after the death of one of 
 several executors, his executor can not be sued by the 
 surviving co-executors for a debt due to their testa- 
 tor. (//) 
 
 Another result is that several executors or adminis- 
 trators can not maintain an action in right of the deceased 
 upon a contract made by the defendant with one of 
 themselves. Hence, to an action by several executors, it 
 was held a good plea in bar that the promises sued 
 [221] upon were made by the defendant jointly with one 
 of the plaintiffs; and Mr. Justice Buller said, 
 " The promise was made jointly with one of the plaintiffs. 
 How can he sue himself in a court of law? It is impos- 
 sible to say a man can sue himself." {k) 
 
 If, nevertheless, a debtor makes his creditor and anothe. 
 his executors, and the creditor neither proves the will 
 nor acts as executor, he may bring an action against the 
 other executor. (/) 
 
 {g) 2 Williams. Executors, 6th ed., 895. Rule 5. 
 {h) Ibid., 895. 
 
 (k) Moffat V. Van Millinf^en, 2 B. & P. 124, note (<r) ; i Williams, Executors, 
 6th ed., 853, 854. 
 
 (/) 2 Williams, Executors, 6th ed., 276. 
 
 I. A bill for account may be And, by statute, an administrator 
 maintained between joint execu- de bonis non may call his removed 
 tors. Stiver v. Stiver, 8 Ohio 220. predecessor to account touching
 
 EXECUTORS AND ADMINISTRATORS 239 
 
 Rule 44. — On the death of a co-executor or co- 
 administrator, his rights of action pass to the survi- 
 vors, and ultimately to the last survivor. 
 
 This is a mere illustration of the general rule as to the 
 effect of death on persons who have a joint right of action 
 on a contract. (;«) 
 
 Rule 45. — The executor of a sole or of a sole 
 surviving executor represents the original testator , 
 but the admin. strator of an executor docs not repre- 
 sent the testator, nor does the administrator of an 
 administrator, or the executor of an administrator 
 represent the original intestate. 
 
 Suppose M. to be a testator, and A. his executor. 
 
 On the death of A., A.'s executor represents M. But 
 if A. dies intestate, A.'s administrator does not represent 
 M. 
 
 Suppose M. to be an mtestate, and A. is his ad- 
 ministrator, neither A.'s administrator nor A.'s [222] 
 executor will represent M. 
 
 Where an executor dies without proving the wil], his 
 executor does not represent the original testator. («) 
 
 (w) Rule 16. 
 
 («) I Williams, Executors, 6th ed., 244-246. 
 
 the entire administration of the Farris v. Berry, 33 Tex. 704; Ker- 
 estate. Giles v Brown, 60 Ga. 661 ; rin v. Robertson, 49 Mo. 254. 
 Helsley v. Craig, 33 Gratt. 717;
 
 240 PARTIES TO ACTIONS. 
 
 CHAPTER XI. 
 
 ACTIONS ON CONTRACT. 
 DEFENDANTS.— GENERAL RULES. 
 
 Rule 46. — No person can be sued for a breach of 
 contract who is not a party to the contract, (a) ' 
 
 The ground on which one person is liable in an action 
 on contract at the suit of another is, that he has made to 
 the latter person, either directly or indirectly, either ex- 
 pressly or as the result of his acts, such a promise as the 
 law considers binding, and has broken this promise. No 
 one, therefore, who is a stranger to a contract can be 
 sued upon it ; or, in other words, no one can be sued for 
 the breach of a promise except the person who has made 
 the promise, {b) 
 
 The mere fact, therefore, that X. has received a benefit 
 from A., will not, of itself, render X. liable to be sued 
 by A. Thus A.'s voluntary courtesy is not the ground 
 of an action ; {c) and if A. voluntarily and without any 
 
 (a) Or who does not incur liabilities as representing an original party to the 
 contract, Rule lO, note {a\, ante, 
 {b) Rule 7- 
 {c) Lampleigh v. Braithwait, i Smith, L. C, 6th ed., 139. 
 
 I. Anderson v. Longden, i by parties." 2 Whart. Cont, \ 784. 
 
 Wheat. 85; Shear v. Mallory, 13 Nat. Bank v. Grand Lodge, 98 U. 
 
 Johns. 497. " It would, in fact, be S. 123 ; Segars v. Segars, 71 Me. 
 
 destructive to society if strangers 530; Warren v. Batchelder, 15 N, 
 
 could intervene and undertake liti- H. 129; Hall v. Huntson, 17 Vt. 
 
 gations in accordance with their 244; Stoddard v. Ham, 129 Mass, 
 
 own interests and tastes, and such 383 ; Colt v. Ives, 31 Conn. 25 ; 
 
 intrusion can only be prevented by Burnett v. Jersey City, 31 N. J. Eq. 
 
 the rigid application of the rule 341. But see Allen v. Thomas, 3 
 
 that contracts can only be sued on Mete. (Ky.) 198.
 
 ACTIONS ON CONTRACT. 241 
 
 request from X., pays X.'s debts or otherwise relieves 
 him from liability, A. does not thereby render X. liable 
 to be sued by him. id) M. was employed by the defen- 
 dants, X. and Co., to carry certain goods for them. M. 
 delegated the whole employment to A. (the plaintiff), who 
 carried the goods without any communication with 
 X. and Co. It was held, that A. could not sue X. [224] 
 and Co. for compensation for the work done by 
 him, (/) since there was " no privity between the plain- 
 tiff and the defendants. There was nothing by which the 
 defendants could conjecture that the plaintiff would be 
 mtroduced to them : nothing by which they should know 
 that they should ever meet with such a person as the 
 plaintiff. The defendants, must, indeed, know that some 
 persons would be employed under M., .... but 
 there is nothing whereby they ever authorized M. to em- 
 ploy any one person to conduct the whole [business]. 
 . . . . The defendants looked to M. only for the per- 
 formance of the work, and M. had a right to look to the 
 defendants for payment, and no one else had." {g) Nor 
 can one person be made liable to another on a contract to 
 which he does not assent, in consequence merely of that 
 other meaning to deal with him as a contractor. This 
 principle is illustrated by the following case, {h) the facts 
 of which appear from the judgment of Bramwell, B. 
 
 " The admitted facts are, that the defendants sent to a 
 shop an order for goods, supposing they were dealing 
 with [M.]. The plaintiff, who supplied the goods, did not 
 undeceive them. If the plaintiff were now at liberty to 
 sue the defendants, they would be deprived of their right 
 of set-off, as against [M.]. When a contract is made, in 
 which the personality of the contracting party is or may 
 be of importance, as a contract with a man to write a 
 book, or the like, or where there might be a set-off, no 
 other person can interpose and adopt the contract. As 
 to the difficulty that the defendants need not pay any- 
 
 (d) See Pownal v. Ferraiid, 6 B. & C. 439, 443. 
 (f) Schmaliiig v. 'riiomlinson, 6 Taunt. 147. 
 (,^') Ibid.. 149, judt;mcnt of (JiBlis, C. J. 
 (/<) Boulion V. Jones, 2 II. & N. 564 ; 27 L. I. 117, Ex. 
 16
 
 242 PARTIES TO ACTIONS. 
 
 body. I do not see why they should, unless they have 
 made a contract either express or implied. I decide the 
 case on the Sfround that the defendants did not know that 
 the ])laintitT was the person who supplied the goods, and 
 that allowing the plaintiff to treat the contract 
 [225] as made with him would be a prejudice to the de- 
 fendants." {i) 
 
 Though expressions in the judgment cited suggest 
 that, under some circumstances, the plaintiff might have 
 made the defendants liable, although they had no inten- 
 tion of dealing with them, the principle of the case seems 
 to be, that " if a man goes into a shop and makes a con- 
 tract, intending it to be with one particular nerson, no 
 other person can convert that into a contract wuh him." 
 {k) " It is a rule of law, that if a person intends to con- 
 tract with A., B. can not give himself any right under 
 the contract." (/) 
 
 The following rules are applications to the different 
 classes of contracts, of the principle that no one can be 
 sued on a contract who is a stranger to it. 
 
 Rule 47 fixes who is the person by whom a simple 
 contract is to be considered made, or, in other words, who 
 is the person who is to be sued for the breach of a simple 
 contract. 
 
 Rule 48 fixes who is the person by whom a contract 
 by deed is to be considered made, or, in other words, who 
 is the person who is to be sued for the breach of a con- 
 tract by deed, i. e., a covenant, {m) 
 
 Rule 47. — The person to be sued for the breach 
 of a simple contract is the person who promises or 
 who allows credit to be given to him. 
 
 (i) Boulton V. Jones, 2 H. & N. 566. 
 
 (/■) Ibid., judgment of Martin, B. 
 
 (/) Ibid., 565, judgment of Pollock, C. B. Compare Hardman v. Booth, I 
 H. & C. 803 ; 32 L. J. 105, Ex. 
 
 {tn) All the real or apparent exceptions to Rule 46 are exceptions to Rule 
 47, and are considered under that head.
 
 ACTIONS ON CONTRACT. 243 
 
 To constitute a simple contract there must be a prora- 
 is 'r, a promisee, and a consideration, {n) But, 
 though there must exist a consideration, it is not [226] 
 necessar}' in order to bind the promisor that the 
 consideration should be anything which, in the ordinary 
 use of the word, benefits the promisor. Thus, if X. prom- 
 ise A. to pay him ;^ioo a year in consideration that A. 
 will marry M., the promise is binding upon X., and A., if 
 he marries M., may sue X. for the non-payment of the 
 ;^ioo. (<?) If X. promise A. to pay for goods to be supplied 
 by A. t9 M., X. is liable to be sued by A. for the price of 
 the goods, and M. is not liable. 
 
 When a simple contract is wholly in writing, the con- 
 tract itself points out who it is who promises, and who, 
 therefore, is to be sued for a breach of the agreement. 
 But the contract, though it points out one person who is 
 liable, need not point out the only person who is liable; 
 for when a contract is simply in writing {i. e., not under 
 seal), though the laws of evidence do not allow it to be 
 shown that X., who on the face of the instrument makes a 
 promise to A., is not liable on the contract, the}' place no 
 difficulty in the way of showing that some other person, 
 Y., is also liable, {p) Nor, again, where a contract is 
 expressly made by word of mouth, e. g., where X. in so 
 many words promises A. to pay A., e. g., for goods sup- 
 plied to M., can there arise any difficulty, supposing the 
 facts to be capable of proof, in fixing upon X. as at any 
 rate one person to be sued for a breach of the contract. 
 
 Difficulty arises when the contract to be sued upon is 
 not an " express contract," i. e., an agreement expressed 
 either in writing or distinctly by word of mouth, but a 
 contract arising from the acts of the parties, e.g., in the 
 course of business between them. 
 
 The question to be considered in this case is, who was 
 the person who allowed the plaintiff to give credit to him, 
 
 (m) See as to different kinds of considerations, Lamplciyli v. IJraithwait, I 
 >nilih, L. C, 6th ed., 142. 
 
 V) .Shadwell v. Shadweli. 8 C. H., N. S., 159 : 30 I- J. I45. C. P. 
 Sp) Thomson v. Davenport, 2 Smith, L. C, 6lh ed., 349-361.
 
 244 PAR Tins TO ACTIONS. 
 
 or placed himself in such a position as to entitle the p ain- 
 tilTtogive crctlit to him. X., for example, orders 
 [227] goods in compan}^ with Y., to be sent to Y., who re- 
 ceives and uses the goods. In settling which of the 
 two A., the vendor, ought to sue for the price of the goods, 
 the point to be determined is, whether credit was given to 
 X. or to Y., or in other words, whether it was X. or Y. who 
 held himself out to A. as the person to whom A. was to 
 look for payment. The fact that the goods were sup- 
 plied to and used by Y. is prima facie evidence of their 
 being supplied on his credit ; but the question to be 
 decided is not who used the goods, but who it Was who 
 undertook or promised by his acts to pay for them, {q) 
 Thus, where a business has been carried on by an execu- 
 tor as trustee for the benefit of the children of the testa- 
 tor, the executor has been held personally liable for debts 
 mcurred in the business, because credit was given to him 
 (r) and in various instances it has been held, that the per 
 son liable for the I'epairs of a ship, or for goods supplied 
 to a ship, is not necessarily the owner ; but is the person 
 on whose credit the work was done, or the goods sup- 
 plied ; [s) since " it is perfectly settled now, that the 
 liability to pay for supplies to a ship depends on the con- 
 tract to pay for them, and not on the ownership of the 
 ship." (/) 
 
 So, where X. and Co. were registered as proprietors 
 of a newspaper under 6 & 7 Will. IV. c. y6, s. 6, the fact 
 of their names appearing as proprietors was held not to 
 make them liable in respect of a contract specifically 
 entered into by M., the real proprietor of the newspaper 
 after they had ceased to be interested in it. {71) For 
 
 iq) Most of the difficulties in choosing the right defendant in an action ex 
 contractu arise from the existence, in one form or another, of the relation of 
 principal and agent. See Ciiapter XII. 
 
 (r) Viner v. Cadell, 3 Esp. 8S. 
 
 is) Young V. Brander, 8 East, 10 ; Annett v. Carstairs, 3 Camp. 354 ; Mitche- 
 son V. Oliver. 5 E. & B. 410 ; 25 L. J. 39, Q. B. 
 
 (/) Mitcheson v. Oliver, 5 E. & B. 443, per Curiam. Compare Myers v. 
 Willis. 17 C. B. 77 ; 25 L. J. 39, C. P. ; Brodie v. Howard, 17 C. B. lOg ; 25 L 
 J 57- C. P. 
 
 («) Holcroft V. Hoggins, 2 C. B. 488 ; 15 !,. J. 129, C. P.
 
 ACTIONS ON CONTRACT, 245 
 
 '' the question in this case " was, " whether the de^ [228] 
 fendants were contractors, not whether they were 
 interested as proprietors in the newspaper wherein the 
 plaintiff 's articles appeared." {x) " The jury found that 
 the contract, in fact, was not made by the defendants, or 
 by their authority. The circumstance of the defendants' 
 names remaining as registered owners, [did] not make 
 the contract theirs, if it was made by the plaintiff exclu- 
 'jively with another party. " {y) 
 
 Exception i. — Actions against a person appointed by statute 
 to be sued on behalf of others, (s) 
 
 Exception 2. — Actions on some contracts implied by law or 
 actions quasi ex contractu, {a) 
 
 As already pointed out, the law often allows one per- 
 son to sue another as if there were a contract between 
 them, though in point of fact no contract exists. In other 
 words, a person who has not made a promise is, under 
 certain circumstances, liable to be sued as if he had made 
 a promise. A promise on his part is, to use the technical 
 expression, implied by law. The numerous cases in which 
 a person is liable to an action for money had and received, 
 though, in fact, he has entered into no contract with the 
 plaintiff, have been already considered, {b) 
 
 The action, again, for money paid is in many cases an 
 action quasi ex contractu, in which the defendant is liable, 
 not because he has made any i)romise, but because the law 
 treats him as if he had made a promise. Thus, as already 
 pointed out, if A. renders a service to X., e. g., pays X.'s 
 debts without any express or tacit promise on X.'s part 
 io remunerate him, X. is not liable to be sued by A. 
 
 Ix) Ilo'.croft V. Hogfjins, 2 C. H. 492, judgment of TiNDAL, C. J. 
 
 (/) Ibid., 494, per Ckkswkli., J. 
 
 (z) See Rule 11, Exception I, Rule 20, Exception i.and Chapter XIII. 
 
 {a) See ante. 
 
 (l>) Sec ante. Sec also Ru.sell v. liell, 10 M. & W. 340, 352 ; Hill v. Per- 
 rott, 3 Taunt. 274; Rumsey v. Nortli-Easl Rail. Co., 32 L. J. 244, C. P. ; IJ 
 C. H., N. S., 641.
 
 246 PARTIES TO ACTIONS. 
 
 lor payment. But if A. is compclletl to make a 
 [229] payment wl'ich X. is legally compellable to make, 
 
 or to do anvthino- which X. is legally compellable 
 to do, (r) X. is liable to an action on contract at the suit 
 of A. ; that is, X., who has made no promise to pay A., 
 is, under the circumstances of the case, liable to be sued 
 as if he had made a promise or contracted to pay A. 
 
 Rule 48. — The person to be sued for the breach 
 of a contract by deed is the person by whom the 
 contract is expressed by the deed to be made, t. e., the 
 covenantor. (^) 
 
 The covenantor is the person who must be sued for a 
 breach of covenant. Where, therefore, X. covenanted 
 with A. for himself and his heirs under his own hand 
 and seal for the act of Y., he was held personally bound 
 by his covenant, though he described himself in the deed 
 as covenanting for and on the part and behalf of Y. 
 " The court said that it was impossible to contend that 
 where one covenants for another he is not to be bound by 
 it; the covenant being in his own name ' for himself, his 
 heirs, &c.' There is nothing unusual or inconsistent in the 
 nature of the thing, that one should covenant to another 
 that a third person should do a certain thing, as that he 
 should go to Rome. The party to whom the covenant is 
 made may prefer the security of the covenantor to that 
 of his principal. Here the defendant covenants for him- 
 self, not in the name of his principal, and puts his own 
 
 seal to it. There is nothing against law in it if he 
 [230] will bind himself for his principal." {e) The cov 
 
 enantor is, moreover, the only person who can be 
 sued for the breach of a covenant. (/) 
 
 (c) Lampleigh v. Braithwait, i Smith, L. C, 6th ed , 137, 144 
 {d) Or the representatives of such person. Compare further Rule 12. 
 (e) Appleton v. Sinks, 5 East, 147, 14S, per CURIAM. Comnare Priestley v 
 Fern=e, 3 II. & C. 986 ; 34 L. J. 175 Ex., judgment of Bramwell. B. 
 (/") See ante.
 
 ACTIONS ON CONTRACT. 247 
 
 A covenantor, again, may, it seems, be sued on a 
 covenant by him contained in a deed, inter partes, though 
 himself not a party to the deed ; {g) but no one can be 
 sued on a covenant who has not executed a deed, for " it 
 is a technical rule that a contract under seal can not bind 
 a person not executing." (Ji) The rule as to a covenantee 
 and a covenantor may be thus summed up. A covenan- 
 tee can not sue on a covenant in an indenture if he is not 
 a party to the deed, but he can sue on a deed which he 
 has not executed. A covenantor can be sued on a cove- 
 nant in an indenture even though he is not a party to the 
 deed ; but he can not be sued on a covenant in a deed 
 which he has not executed. 
 
 Rule 49. — Where several persons are jointly lia- 
 ble on a contract, they must all be sued in an action 
 for the breach thereof, i. e., joint contractors must be 
 sued jointly. (2) ^ 
 
 ig) Salter v. Kidgley, Carth. 76 ; Coke, I.itt., 230 b. Some doubt as to this 
 is expressed by Parke, B. ; Beckham v. Drake, 9 M. & W. 95 ; Lu.h, Prac- 
 tice, 3rd ed., 16, note z; Davidson, Precedents, 3rcl ed., 36. Contrast this with 
 the rule as to covenantees, ante. 
 
 {h) Priestley v. Fernie, 3 H. & C. 986, per Bramweix, B. 
 
 (/) See ante. 
 
 I. All the obligors in a joint con- vors alone; Harwood v. Roberts, 
 
 tract must be made defendants in 5 Me, 441 ; Machette v. Magee, 9 
 
 an action upon it. Page v. Brant. Phila. 24; Bingee v. Smith, Dall. 
 
 18 111. 37; Munn V. Haynes, 46 (Tex.) 616; Bennett v. Shillars, 7 
 
 Mich. 143; Beale v. Trudeau. 18 Tex. 602; or under code joint y 
 
 La. Ann. 129; Dougart v. Desan- with the executor of the decedent; 
 
 gle. 10 Rob. (La.) 432 ; People v. Divine v. Duncan. 2 Abb. N. C. 33 ; 
 
 Sloper. I Idaho. 183. Unless some Claiborn v. Goodloe, Cooke. 394; 
 
 are discharged in bankruptcy. In re O'Flaherty. 7 La. Ann. 640. 
 
 Ivey V. Gamble. 7 Port. 546 ; Dorn A judgment for or against one 
 
 V. O'Neale. 6 Nev. 158; or the of several joir^l debtors is a bar to 
 
 statute of limitations bars some, an action against another. Clinton 
 
 Dunny v. Smith, 18 N. Y. 568; Bank v. Hart. 5 Ohio St. 35; Wil- 
 
 Caswcll v. Englemann. 31 Wis. 96; Hams v. Rogers, 14 Bush. 786. 
 
 and if one die, against the survi- AH the parties liable on a promis-
 
 248 
 
 PARTIES TO ACTIONS. 
 
 If X., Y., and Z. are joint contractors, they should 
 all be made defendants in an action for breach of the 
 contract, and if X. alone is sued, he may by proper 
 
 sory note or bill of exchange, resi- 
 dent in Mississippi, must be made 
 parties in an action thereon in that 
 state. Stiles v. Inman, 55 Miss. 
 472 ; Crump v. Wooton, 41 Miss. 
 612. But in Ohio one or any or 
 all of such parties may he sued. 
 Green v. Burnet, i Handy, 285 ; 
 Kautzman v. Weirich, 26 Ohio St. 
 332 ; Decker v. Trilling, 24 Wis. 
 612; Garrison v. Hollins, 2 Lea, 684. 
 
 By statute the guarantor may be 
 sued with other parties to a note, 
 though at common law only those 
 jointly liable could be joined. 
 Kautzman v. Weirich, 26 Ohio St. 
 333; Tooke V. Taylor, 31 Tex. 4; 
 Brown v. Champlin, 66 N. Y. 220; 
 Marshall v. i'eck, i Dana, 610; 
 Stewart v. Glenn, 5 Wis. 16. So 
 the maker and endorser may be 
 joined. Riddle v. Mandeville, 5 
 Cranch, 322 ; Hosie v. Judge, 2 
 Mich. 496; Mix V. State Bank, 15 
 Ind. 522 ; Peretz v. Peretz, l Mart. 
 (La.) O. S. 220; Weston v. Hoge, 
 7 Yerg. 350 ; and plaintiff may take 
 judgment against the maker, dis- 
 missing the endorsers. McGrath 
 V. Hoopes, 4 Cush. 498 ; Kirk v. 
 Seawell, 2 Sm. & M. 571 ; or con- 
 trary wise, where the maker was not 
 shown to live in the state. Pool v. 
 Hill, 44 Miss. 309; Boush v. Smith, 
 2 Sm. & M. 512. 
 
 It is error to render a several 
 judgment against one of the joint 
 obligors of a bond, leaving the 
 action to proceed as to the others, 
 
 a joint action against all being the 
 only remedy on the bond. Ancher 
 V. Adams, 23 Ohio St. 549 ; Griffin 
 V. Simpson, 45 N. H. 20; Hale v. 
 Crowell, 2 Fla. 537 ; Beale v. Tru- 
 dean, 18 La. Ann. 129; Thompson 
 v. Cretien, 3 Rob. (La.) 27 ; Wooten 
 V. Wall, 18 Ga. 613 ; Walker v. Ins. 
 Co., 31 Ala. 529. 
 
 In Louisiana, one joint obligor 
 may be sued alone and judgment 
 against him rendered for his pro- 
 portion of the debt. Mitchell v. 
 D'Armond, 30 La. Ann. 396. 
 Where one contracts for himself 
 and others, and the other party 
 knows it, he must sue all the con- 
 tractees for a breach. Stover v. 
 Metzgar, i Watts & S. 269; Mc- 
 Arthur v. Ladd, 5 Ohio, 518 ; AUin 
 V. Shadburne, i Dana, 68. If two 
 are sued jointly the plaintiff must 
 prove joint liability on defendant's 
 part. Platner v. Johnson, 3 Hill, 
 477 ; Manahan v. Gibbons, 19 
 Johns. Ill; Florence S. M. Co. v. 
 S. M. Co., no Mass. 83; Griffin v. 
 Simpson, 45 N. H. 20; Collins v. 
 Burlington, 54 Vt. 20 ; Rowan v. 
 Rowan, 29 Pa. St. 182. But see 
 Lewis V. Clarkin, 18 Cal. 399, for the 
 code practice, Cope, J., saying : " If 
 A enter into a contract on behalf of 
 himself and B, and a suit is after- 
 wards brought upon it against both, 
 the injustice of permitting the former 
 to take advantage, for his own bene- 
 fit, of the absence of liability of the 
 latter, will hardly be questioned.
 
 ACTIONS ON CONTRACT. 249 
 
 pleading, that is, by a plea in abatement, compel the plain- 
 tifif to add Y. and Z. as co-defendants. But if the objec- 
 tion that a contractor is omitted who is jointly liable with 
 the defendant, is not taken by a plea in abatement, proot 
 at the trial of a joint contract sustains the allega- 
 tion that the defendant contracted. (/) A contrac- [231] 
 tor, that is to say, may, by proper pleading, cause the 
 persons liable together with him, to be made co-defendants 
 in an action for the breach of their joint contract ; but he 
 can not get rid of his liability simply by proving that 
 other persons are also liable, {k) 
 
 A. sued X., the commandant of a volunteer corps, and 
 a member of the committee, for the price of uniforms sup- 
 plied to members of the corps. No plea in abatement 
 was pleaded, and it was held that if the contract on which 
 the action Avas brought was made by X. jointly with the 
 committee, or jointly with the whole corps, he was liable 
 even though sued alone. (/) 
 
 A defendant sometimes can not plead the non-joinder 
 of his co-defendants, even in abatement. The cases where 
 such a plea can not be pleaded f< )rm the exceptions to the 
 general rule. 
 
 Exception 1. — Where a co-contractor nas become bankrupt. 
 
 Where a joint contractor has become bankrupt, an 
 action may be brought on the contract against his co- 
 conti actors alone. (;«) 
 
 Exception 2.— Where a claim is barred against one or moie 
 joint debtors, and not against others. 
 
 ij) I VVms. Sauncl. 291. 291 b \ Whelpdale's Case, 5 Coke, Rep. 119^7. 
 Richards V. Heather, 1 B. & Aid. 35 ; Cross v. Williams, 7 II. & N. 675 : 3' 
 L.J. 145. Ex. 
 
 (X-) Contrast tliis with ihc rule as to co-pl^iiUilTs, Rule 13 ; and see Chaptei 
 XX.XIV. 
 
 (0 Cross V. Williams, 7 II. & N. 675 ; 31 L. J. MS. li". ; Rice v. Siuite, 1 
 Smith. L. C, 6th ed., 51 1. 
 
 (///) 3 & 4 Will. IV. c. 42. s. I. 
 
 and such a case would seem to be and meaning." People v. Frisbie, 
 not only within the letter of the slat- Id. 403. 
 ute, but pcculiarily within its spirit
 
 250 PARriES TO ACTIONS. 
 
 Where several persons are joint debtors, it may happer 
 tliat in consequence cf an acknowledgment or part pay- 
 ment of the debt by one or more of them, the effect of the 
 Statutes of Limitation is avoided as regards one or more 
 
 of them, and not as regards others, {it) Those only 
 [232J sh(nild be sued against whom the claim is not 
 
 barred. 
 
 Exception 3. — Where a co-contractor is resident out of the 
 iurisdiotion. 
 
 If one of several co-contractors is resident out of the 
 jurisdiction, all or any of them may be sued, and the per- 
 son or persons sued can not object to the non-joinder of 
 their co-contractors. 
 
 A defendant is " required in a plea m abatement to 
 allege the non-joinder of all the co-contractors [not joined J, 
 and the plea [is] answered by showing the omission of 
 one, it being the defendant's duty to give the plaintiff a 
 better writ against all those who are jointly liable with 
 him." {p) He is also bound (/) to allege that the person 
 whose non-joinder is objected to is resident within the 
 jurisdiction, and to state his place of residence. If, there- 
 fore, one of the persons whose non-joinder is objected to 
 resides v/ithout the jurisdiction, the conditions on which 
 a plea in abatement for non-joinder can be pleaded can 
 not be fulfilled, and the same result follows from the 
 fact of a defendant's not knowing the residence of any one 
 . J his co-contractors. A defendant, in short, can not 
 object to the non-joinder of his co-contractors " unless all 
 the co-contractors are within the jurisdiction, and their 
 places of residence can be given." {q) Thus, X., Y.. 
 and Z. are co-contractors, and Z. resides beyond the juris- 
 diction. If an action be brought against X. and Y., they 
 
 (m) 9 Geo. IV., c. 14, s. I ; IQ & 20 Vict. c. 97, ss. 13, 14; Boydell v 
 Drummond, 2 Camp. 157 ; Darby & Bosanquet, Limitations, 44, 104 ; Bulleo, 
 rieadings. 3rd ed., 642-644. 
 
 (p) Joll V. Curzon, 4 C. B. 249, 254, judgment of WiLDE, C. J. 
 
 (/) 3 C& 4 Will. IV., c. 42, s. 8. Bulien, Pleadings, 3rd ed., 471. 
 
 (y) Joll V. Curzon, 4 C. B. 255, per Williams, J.
 
 ACTIONS ON CONTRACT. 251 
 
 can not object to the non-joinder of Z., and if an action be 
 brought against X. alone, or Y. alone, the defendant can 
 not take any objection to the non-joinder of the other co- 
 contractors. 
 
 Exception 4. — Where an action is brought against common 
 carriers. 
 
 In an action against common carriers either all 
 may be joined as defendants or one or more may [233] 
 be sued without joining the others, (r) 
 
 Exceptio7i 5. — Where an action is brought against a firm, 
 some of the members of which are nominal or dormant 
 partners. 
 
 Where an action is brought against the members of a 
 firm, merely nominal or dormant partners may be joined 
 or not as defendants at the plaintiff's choice. It is, how- 
 ever, best to join them, {s) 
 
 Exception 6.— Where a co-contractor is an infant or a 
 married woman. 
 
 Where an infant or married woman contracts together 
 with other contractors, the latter alone must be sued. 
 The infant or the married woman must be considered as 
 not having contracted, and the joinder of either of them 
 will be, unless amended, a fatal error, {t) 
 
 (r) " Any one or more of [several] mail contractors, stage-coach proprietors, 
 fcr common carriers shall be liable to be sued by his, her, or their name or 
 names only; and ... no action or suit commenced to recover damages for 
 loss or injuiy to any parcel, package, or person sliall al)ate for want of joining 
 any co-proprietor or co-partner, in such mail, stage-coach, or other public con- 
 veyance by land for hire." II Geo. IV. ; I Will. IV., c. 68, s. 5. 
 
 (j) Chapter XIII. 
 
 (/) These exceptions differ in character. In the first five cases the plaintiff 
 may join the persons whom he is not compelled to join as defendants, and the 
 only harm he can suffer is, that in some of these cases, f. g., where the defend- 
 ant joined is bankrupt, or is protected by the Statutes of Limitation, he will 
 fail in his action as against such defendant. In the sixth case the idaintifTmust 
 not join the person, sc, the infant, or married woman, whom he can not l)e 
 conipelled to join as a defcnd.int ; for llie joinder of such infant, or niairied
 
 252 PARTIES TO ACTIONS. 
 
 Rule 50. — Covenantors and other contractors 
 may be at once jointly and severally liable upon the 
 same covenant *or contract, in which case they may 
 be sued cilher jointly or separately, (u) 
 
 [234] Covenantors and other contractors may, by the 
 
 same covenant or contract, bind themselves at once 
 jointly and severallv, that is, they may make themselves 
 liable to be sued at the option of the plaintiff, either 
 jointly or severally. X., Y., and Z., for example, bind 
 themselves h\ a joint and several bond or promissory 
 note. The plaintiff may sue either X., Y., and Z. jointly, 
 or X. separately, Y. separately, &c. {x) On one joint and 
 several covenant or contract it may be right to sue all 
 the covenantors, &c., jointly, e. g., X., Y., and Z., or to 
 sue each of them, e. g., X., or Y., or Z. separately. But 
 it IS not right to sue more than one without suing all. {y) 
 
 Rule 51. — The liability to an action on contract 
 can not be transferred or assigned. 
 
 '&' 
 
 A person bound to perform a contract can not, either 
 before or after a breach of it, assign to another his liability 
 to be sued by the person with whom the contract is 
 made, {a) Thus, an agreement between retiring partners 
 
 woman, will, if properly pleaded, make the action fail not only against such 
 person, but also as against all the defendants. Boyle v Webster, 17 Q. B. 950; 
 21 L. J. 202, Q. B. See further as to the effect of non-joinder and mis-joinder, 
 Chapter XXXIV. 
 
 (u) Contrast Rule 14. 
 
 {x) Recovery against X., it must be remembered, is a bar to an action 
 against Y., &c., and vice versa. 
 
 (y) Though this holds good with regard to what is, in law, one joint and 
 several covenant, it does not always apply to what, in popular language, would 
 be called one covenant. Suppose X., Y., and Z. covenant jointly and severally. 
 and also each two of them covenant, e. g., X. and Y., Z. and Y., &c. In such 
 a case X. and Y. can be sued without joining Z. They are sued not on the 
 joint and sereral covenant of X., Y., and Z., but upon an independent cove- 
 nant by X. and Y. 
 
 (a) Kale 9.
 
 ACTIONS ON CONTRACT. 253 
 
 and the remaining members of the firm, that the latter 
 shall be liable for all the debts of the firm, though it may 
 be binding between the parties to the agreement, does not 
 relieve the retiring partners from liability to the creditors 
 of the firm, {b) 
 
 Exception i.— Where there is a change of credit by an [235 J 
 agreement between all the parties. 
 
 The liability for a debt, though not assignable by the 
 act of the debtor alone, may be transferred by a binding 
 agreement between all the parties, to the effect that the 
 original debtor shall be discharged, and a new debtor 
 accepted in his place. Thus X. is indebted to M., and 
 M. to A. By agreement of all the parties, the debt of X 
 to M. is discharged, and X. is accepted by A. as debtoi 
 in M.'s place, {c) Such a transfer of liability frequently 
 occurs upon a change in a firm {d) of partners, when the 
 debts of the old firm may be, by agreement of all the 
 three parties (the creditor, the new firm, and the old 
 firm), transferred to the new firm, so as to render the new 
 firm liable to the creditor in substitution of the old firm, 
 and to discharge the latter ; and this agreement may be 
 either express or arise from the acts of the parties, {e) 
 The same thing takes place when, by agreement between 
 all the parties, liability is transferred from the original 
 contractors to one only of their number. (/) It might be 
 thought that in this case there was no consideration {g) 
 for the agreement, since the person to whom the liability 
 is transferred is already jointly liable to the creditcjr. 
 But this is not so, since it is demonstrable that the sole 
 
 ib) Chapter XIII. 
 
 {c) Tatlock V. Harris, 3 T. R. 174, 180 ; Cuxon v. Chadley, 3 B. & C. 591 
 Compare, as to assignment of riijlit of action by agreement between the parties 
 ante ; Wilson v. Couplanfi, 5 B. & Aid. 228. 
 
 (li) For the nature of a firm, see ante. 
 
 (e) Hart v. Alcx.mdcr, 2 M. & W. 484 ; Rolfe v. Flower, L. R. i. P 
 C.27. 
 
 (/) Lyth V. Ault, 7 Exch. 669. 
 
 ( g) .See ante
 
 254 PARTI/:S TO ACTIONS. 
 
 security of X. may be a better thing than the joint 
 
 security of X. and Y. {h) 
 [236J An assi^-nmcnt of this kind can take place only 
 
 by agTcement among all the parties, {i) and appar- 
 ently only in the case of debtors. 
 
 This exception is rather apparent than real. A new 
 contract is in reality formed, part of the consideration 
 for which is the release of the original debtor from 
 liability under the original contract. It is, therefore, 
 essential to such a transference of such a liability that the 
 original debtor should be released. 
 
 Exception 2. — Where there are covenants between lessor 
 and lessee which run with the land. 
 
 Where such covenants are made by a lessor, the 
 liability on them passes to the assignee of the reversion. 
 Where such covenants are made by a lessee, the liability 
 on them passes to the assignee of the term, {k) Both 
 lessor and lessee are liable for breaches of covenant com- 
 mitted before assignment. 
 
 Lessor. — On assignment of the reversion by the lessor, 
 he ceases to be liable on covenants which run with the 
 land. (/) 
 
 Lessee. — The original lessee is not freed from his per- 
 sonal liability on covenants in the lease, but may be sued 
 notwithstanding that he has assigned the demised premi 
 ses, and upon his death his liability upon his expres. 
 
 ih) Lyth V. Ault, 7 Ex. 672, judgment of Pollock, C. B. ; Ibid. 674, judg- 
 ment of Alderson, B. 
 
 The main reason why the sole security of X. may be a better thing than the 
 joint security of X. and Y. is, that when X. is solely liable, his liability passes 
 on his death to his representatives, and is enforceable against them at law ; 
 whilst, if \X. is jointly liable with V., X's liability at law does not pass on his 
 death to his representatives, but survives against Y. only. 
 
 {{) Hodgson v. Anderson, 2 B. & C. 842, 855. 
 
 (i) See attte. 
 
 (I) "When the lessor grants his reversion, the privity of estate is thereby 
 transferred to the grantee, and the privity of contract in respect of such cove- 
 nants as run with the land is also transferred by force of the statute (32 Hen. 
 Vni., c. 24) ;" Smith, Landlord and Tenant, 293, note 19. Conf Bullen, 
 Pleadings, 3rd ed., 638 ; Bickfe;d v. Parson, "^ C. B. 920.
 
 ACTIONS ON CONTRACT. 255 
 
 covenants devolves upon his executor. (;«) In other 
 words, the lessee continues liable to the lessor on express 
 covenants in the lease, even though they are covenants 
 which run with the land. Thus, if a lessee assign over 
 his term, and the lessor accept the assignee as his 
 tenant, the lessee is liable to an action by the lessor, [237] 
 on an express covenant to pay the rent, {n) The 
 lessee is not, however, liable after an assignment of his 
 term to an assignee of the reversion, /. e., if A. is the 
 lessor and X. the lessee, and A. assign his reversion to B., 
 and X. assign his term, to Y., X. is under no liability to 
 B., for X.'s liability to B. arises only from privity of 
 estate, and is put an end to by assignment, if the assignee 
 IS accepted by the reversioner as tenant. {0) 
 
 On the assignment of the reversion, the lessee ceases 
 to be liable to the lessor on covenants which run with 
 the land, and will therefore pass to the assignee of the 
 reversion. (/) 
 
 Assignee. — The assignee of the lessee is responsible 
 only as long as he holds the estate m the land. If he re- 
 assigns, he gets rid of liability in respect of future breaches 
 of covenant, though he remains liable for breaches already 
 committed by him. {q) He is not liable for breaches 
 committed before assignment to him. (r) 
 
 Rule 52. — The liability to an action on a con- 
 tract made by several persons jointly, passes at the 
 
 (w) Leake, Contracts, 629 ; Thursby v. Plant, I Wins. Saund., 240 a ; 
 Auriol V. Mills, 4 T. R. 94, 98. 
 
 («) Bullen, Pleadings, 3rd ed., 637. "When the lessee assigns his estate, 
 the privity of estate is transferred to the assignee, the lessee still remaining 
 liable upon his privity of contract." Smith, Landlord and Tenant, 293, note 
 
 (o) Wadham v. Marlow, 8 E.ast, 314, n. ; i Wms. Saund. 240, 241 c ; 2 Ibia. 
 202, n. 5 ; Leake, Contracts, 629. 
 
 (p\ Green v. James, 6 M. & W. 656; i Smith. L. C. 6th ed., 61. 
 
 (y) Marley v. King, 2 C. M. & R. 18 ; T.iylor v Shum, i B. & P. 31 
 Spencer's Case, I S. L. C, 6th ed., 45, 60. 
 
 ir) Coward v. Gregory L. R. 2. C. P. 153 ; 36 L. J. i, C. P.
 
 -'56 PARTIES TO ACTIONS. 
 
 death of each to the survivors, and on the death of 
 the last to his representatives, (^s) 
 
 A joint contract is made by X., Y., and Z. The 
 Habilitv to be sued upon the contract passes, on the 
 [23S] death of Z., ♦^o X. and Y. ; on the subsequent death 
 of Y., to X. ; and on the death of X. (provided the 
 Uabihty to be sued survives), {t) to X.'s executor or admin- 
 istrator. The representatives, e. g., of Z. can neither be 
 sued upon the contract themselves nor be sued jointly 
 with X. and Y. 
 
 A person's separate liability on any contract passes, of 
 course, to his representatives. If, therefore, X., Y., and 
 Z. enter into a joint and several contract, and Z. die, X. 
 and Y. may be sued on their joint contract, and Z.'s exec- 
 utor may be sued on Z.'s separate contract. In other 
 words, a joint and several contract by X. and Y. is, in effect, 
 three contracts, a joint contract by X. and Y., a separate 
 contract by X., and a separate contract by Y. 
 
 (j) Compare Rule 16. 
 (/) Chapter XVIII.
 
 PRINCIPAL AND AGENI. ^S7 
 
 CHAPTER XII. 
 
 PRINCIPAL AND AGENT. 
 
 Rule 53. — A contract entered into by a princi- 
 pal, {a) through an agent, is in law made by the 
 principal, and the principal, not the agent, is the 
 person to be sued for the breach of it. 
 
 A principal is bound by the acts of an agent which he 
 authorizes before, or ratifies {b) after, they are done. 
 
 The main difficulty in fixing one person with responsi- 
 bility for a contract made by another person on his behalf, 
 lies in establishing that such other person has authority 
 to contract, i. e., that he is in law the agent of the alleged 
 principal. 
 
 The pnnciple which pervades all cases of agency is, 
 that the principal is bound by all acts of his agent within 
 the scope of the authority which he gives him, {c) or 
 appears to the world to give him. 
 
 (a) Rule 17. See n. (<r) ante, as to the use of the letters P. A. and T. 
 •hroughout this chapter. 
 
 ■ b) For ratificaiion, see ante. 
 
 (f^ The term authority includes implied as well as express authority. Many 
 .difficulties in the law of agency arise from the ambiguous use of this word. 
 Authority is sometimes used for that authority only which a principal intends 
 to give his agent, and sometiines also for the authority which a principal, 
 though he may not intend to do so, does, as a matter of fact, give his agent from 
 the position in which he places him. An agent may bind his principal beyond 
 the authority which the principal intends to give him, and tlms may, as between 
 his principal and himself, act in excess of his authority. But an agent can not 
 bind his principal, as regards third persons, beyond the authority which he de- 
 rives, either directly from the principal, or indirectly, as a consequence of tlie 
 position in which he is placed, or suffered to stand, by his principal. The im- 
 portant point to remember is that as regards third persons the only question 
 is. what authority has V. apparently given A.? What has he suffered third 
 parties to believe respecting A.'s position and powers? Story, Agency, s. 127, 
 n. (i) ; Byles on IMIs, 8th ed., 29. 
 17
 
 :58 PARTIES TO ACTION J 
 
 [240] In other words, the principal is always bound 
 
 by the acts of his agent, up to the extent of the 
 agent's authority, and is never bound beyond the extent 
 of that authority, {d) For in so far as the principal em- 
 powers the agent to represent him, and in so far only, the 
 agent is (for legal purposes) the principal, and binds the 
 principal by his acts. The difficulties which arise are 
 mainly due to confusion between the extent to which the 
 principal has actually empowered the agent to represent 
 him, and the extent to which he has intended to empower 
 him. 
 
 The authority of an agent is either express or implied 
 
 It is termed express or actual authority when the agent 
 derives authority expressly, i. e., by writing or wore of 
 mouth, from the principal. 
 
 When a plaintiff relies solely upon the express authority 
 of an agent in order to fix a principal with responsibility 
 the main question to be determined must be, what was 
 the actual authority given ? This inquiry must itself be 
 either a question of fact for the jury, to be determined by 
 evidence, if the authority was given by word of jnouth, 
 or a question for the court as to the meaning or con- 
 struction of a written document, if the authority was given 
 in writing. 
 
 The authority is termed implied or presumptive 
 authority when the agent derives authority from the 
 principal impliedly (or tacitly), i. e., from the acts or con- 
 duct of the principal : or in other words, from being placed 
 " in a situation in which, according to ordinary 
 [2^\] rules of law, or, perhaps, it would be more correct 
 to say, according to the ordinary usages of man- 
 kind, [the agent] is understood to represent and act for 
 the person who has so placed him." (/) 
 
 id) It follows that the authority conferred on an agent for any purpose 
 must always be held to include, unless there is something specially to negative 
 the inference, all the necessary and usual means of executing it with effect 
 (Withington v. Herring, 5 Bing. 442 ; Howard v. Bailey, 2 H. Bl. 618 ; Fenn 
 V. Harrison, 3 T. R. 757 ; Tobin v. Crawford, 9 M. & W. 716 ; Story, Agency 
 SI. 58-65. 
 
 (/) Pole V. Leask, 33 L. R. 162, Ch. (H. L.), per Lord Cranwortm.
 
 PRINCIPAL AND AGENT. 259 
 
 The ground on which a principal is bound by the 
 apparent authority of his agent has been thus laid down 
 with reference to a particular case : — 
 
 " Strangers can only look to the acts of the parties, 
 and to the external indicia of property, and not to the 
 private communications which may pass between a prin- 
 cipal and his broker ; and if a person authorize another 
 to assume the apparent right of disposing of property in 
 the ordinary course of trade, it must be presumed that 
 the apparent authority is the real authority. I can not 
 subscribe to the doctrine that a broker's engagements are 
 necessarily and in all cases lim.ited to his actual authority, 
 the reality of which is afterwards to be tried by the fact. 
 It is clear that he may bind his principal within the limits 
 of the authority with which he has been apparently 
 clothed by the principal in respect of the subject-matter ; 
 and there would be no safety in mercantile transactions 
 if he could not. If the principal sends his commodity to 
 a place where it is the ordinary business of the person to 
 whom it is conhded, to sell, it must be intended that the 
 commodity was sent thither for the purpose of sale. If the 
 owner of a horse sent it to a repository of sale, can it be 
 implied that he sent it thither for any other purpose than 
 that of sale ? Or if one send goods to an auction-room, 
 can it be supposed that he sent them thither merely for 
 sate custody? Where the commodity is sent in such a 
 way and to such a place as to exhibit an apparent pur- 
 pose of sale, the principal will be bound, and the purchaser 
 iafe." (g) 
 
 Most cases of agency depend on the existence of im- 
 plied authority. The authority, for instance, of a 
 servant to bind his master within the scope of his [242] 
 usual employment, (//) of a partner to bind his co- 
 partners {i) in their business transactions, of auctioneers, 
 brokers, factors, cashiers in banks, masters of ships, shop- 
 
 {g) Pickering; v. Inisk, 15 Eust. 43, per CURIAM. 
 
 \h) See Smith. Master and Servant, 2nd ed., 166; Nicksoii v. Brohau, 10 
 Mod. 109, 1 10. 
 
 (0 Hawken v. Itdurnc, 8 M. & W. 703.
 
 26o PAR THIS TO ACTIONS. 
 
 men, kc, and of nunicnnis other agents, arises m each 
 case I'rom the fact that the person exercising the authority 
 has been phiccd, or rather has been allowed to stand, in a 
 position in which, according to the ordinary usages of 
 mankind, he is understood and reasonably believed by 
 'third parties to have a right to bind his principal, (/c) 
 
 From the nature of implied or apparent authority flow 
 the following results : — 
 
 First. A principal may be bound by the act of his 
 agent after the authority to act for him has been, as 
 between him and the agent, revoked ; for to persons whc 
 do not know of the revocation, the agent may appear tc 
 have authority, and therefore really have authorit}'^, as 
 regards such persons, to bind the principal. (/) 
 
 Secondly. An agent's apparent authority can not 
 be limited by the private orders of his principal, which 
 are unknown to the third parties dealing with th*. 
 agent, {m) 
 
 {k) What is the extent of an agent's implied authority, is a question fioa^c 
 times of law, at other times of fact. 
 
 The powers of some kinds of agents, if. _f., partners, factors, brokers, &c., aif 
 so well known that they are assumed, as a matter of law, to be, in the abs-;ncf 
 of proof to the contrary, of a certain description. 
 
 On the other hand, the powers of the greater number of agents are not set- 
 tled as a matter of law. The authority, for instance, of a servant to pledge hi;- 
 master's credit, of the manager of a bank to endorse bills on his employer's be- 
 half, &c., arises — if it exists at all — solely from the principal, in either case 
 having held out the agent as having authority to pledge his credit or sign bills 
 
 (/) V. Harrison, 12 Mod. 346. 
 
 (tn) See Story, Agency, s. 127, n. i ; Byles on liills, 29. 
 
 A distinction is often drawn as to the effect of private orders between thv 
 position of a general and a particular agent : a general agent being one who i; 
 employed to perform all things usual in a particular course of business or em 
 ployment, e. g., a factor, broker, &c. ; a particular agent is one who is employee 
 in a single instance (Whitehead v. Tuckett, 15 East, 400 ; Story, Agency, 127 
 n. I), f. g., 2l. servant sent for the first time by his master to borrow money of a 
 friend. " The authority," it has been said, "of a general agent to perform all 
 things usual in the line of business in which he is employed, can not be limited 
 Dy any private order, nor known to the party dealing with him. Hut the rule 
 is directly the reverse concerning a particular ngctiit, /. e., an agent employed 
 specially in a single transaction ; for it is the duty of a party dealing with such 
 a one, to ascertain the extent of liis authority, and if ht do not he must abide 
 the consequences " (.Smith, Mercantile Law, 7th ed., 128, I2g). But the dis- 
 tinction thus laid down is not, it is submitted, maintainable, since, if even a 
 particular agent (though the term itself is not a very happy one, Byles on Bills 
 8th ed., 29) is held out to other persons as having an authority beyond thaf
 
 PRIXCIPAL AND AGENT. 261 
 
 Thirdly. Where a person knows, or ought to [243] 
 Know, that an agent's authority is limited by private 
 instructions, he is bound by the limit actually imposed 
 by the principal, {n) 
 
 The following cases illustrate the positions laid down 
 as to an agent's power to bind his principal within the 
 extent of his authorit)\ 
 
 P. expressly authorizes A. to buy goods for him from 
 T. P. is of course liable to be sued by T. for the price 
 of the goods thus bought. If P. gives A. a greater actual 
 and express authority than A. appears to possess, i. e., 
 than T. is justified at the time of contracting with P., 
 through A., in believing A. to have, P. is, it would seem, 
 nevertheless bound. T. acted at his risk, but since P. 
 gave A. actual authorit}-, e. g., to borrow money for him, 
 T. may apparently take advantage of such authority. 
 
 P. habitually employs his servant, A., to buy [244] 
 goods on P.'s credit. A. buys goods on P.'s credit, 
 which P. has not authorized him to buy. P. is neverthe- 
 less bound to pay for the goods, since A. has, in the eyes 
 of third persons, an implied or apparent authority to pledge 
 the credit of P. (<?) And it appears possible that an 
 implied authority to order goods may arise from recogni- 
 tion of the authority of the agent in a single instance, {p) 
 Whether it arises or not will usually be purely a question 
 for the jury. 
 
 Where P. used to give his servant, A., money every 
 Saturday to defray the charges of the foregoing week, 
 
 which liis principal intends him to possess, the principal will he bound up to 
 the extent of the agent's apparent authority (Story, Agency, s. 127). The true 
 rule seems to be, that an apparent authority can never be restrained by private 
 ortlcrs from the principal which are unknown to the ihird party ; l>ut that a 
 parti'.ubr agent, as being employed in one instance only, can rarely have any 
 apparent authority whatever, and third persons therefore must, as a general 
 rule, iru-t to his real or actual authority. Compare Alexander v. Gibson, 2 
 Camp. 555 ; Brady v. Todd, 30 L. J. 223, C. P. ; 9 C. H., N. S., 592 ; Howard 
 V. Sheward, L. R. 2, C. V. 14S ; 36 L. J. 42, C. I'. ; Ward v. Evans, 2 Ld. 
 Raym. 928. 
 
 (;/) Uaines v. Ewing, I,. R. I, Ex. 320 ; 35 L. J. 194, Kx. ; Smith, Master & 
 Servant, 2nd ed., i63. 
 
 (o) Nickson v. Hrohan, 10 Mod. 109 ; Wailand's Case, 3 .Salk. 234. 
 
 {f>) Hazard v. Treadwcll, I Sir. 506.
 
 262 PARTIES TO ACTIONS. 
 
 > 
 though the servant kept tlie monc}- , the master was held 
 chargeable, " for the master at his peril ought to take care 
 what servant he employs, and it is more reasonable that 
 he should sulTor for the cheats of his servant than stran- 
 gers or tradesmen." {q) 
 
 P., a jeweler, kept a shop m the country, living him- 
 self in London. The country shop was managed by a 
 shopman, A., from whom T. had been in the habit of 
 receiving orders in P.'s name, for goods, which were sent 
 to the country shop, and afterwards paid for by P. A. 
 went to London, and ordered jewelry there of T. in P.'s 
 name, which he then earned away witb him, and ab- 
 sconded with. T., it was held, could sue P. for the price 
 of the goods obtained by A. (r) 
 
 " The question in this case [and the same remark 
 applies to other cases of a similar kind] was not what was 
 the exact relation between the defendant and A., but 
 whether the defendant had so conducted himself and held 
 the other out as to lead the plaintiff reasonably to suppose 
 that A. was the defendant's general agent for the purpose 
 
 of ordering goods." {s) 
 [245] P., who was not a horse-dealer, sent A., his ser- 
 vant, with a horse to Tattersall's for sale, with in- 
 structions to warrant him sound, and he warranted him 
 free from vice. P. was held liable upon the warranty, 
 although it was contended on his behalf that the servant 
 was but a special agent, and, having exceeded his author- 
 ity, the master ought not to be bound, {t) Where, again, 
 P. entrusted A., his servant, to sell his horse at a fair, and 
 to receive the price, and A. warranted him sound, th'j 
 defendant was bound by the warranty, {ti) But though 
 the servant of a horse-dealer has authority to warrant, 
 and this, even though, unknown to the buyer, he has ex- 
 
 (q) VVailand's Case, 3 Salk. 234, per Holt, C. J. 
 
 {r) Summers v. Solomon, 26 L. j. 301. Q. 13. ; 7 E. & B. 879. Bramwell, 
 B., dors not assent to the law of this case. 3 II. & N. 794. 
 
 (j) Summers v. Solomon, 26 L. J. 302, Q. B., judgment of Coleridge, 
 C.J. 
 
 (/) Helyear v. Hawke, 5 Esp. 72. 
 
 (m) Alexander v. Gibson, 2 Camp. 555,
 
 PRINCIPAL AND AGENT. 263 
 
 jyress orders not to warrant, (j) and though, apparent!}' . 
 the servant of a private person who is sent to a fair or 
 mart to sell a horse may have authority to warrant, on 
 the ground that the person entrusted with the sale of a 
 horse in a fair or public mart appears to be the owner, 
 and to have all the powers of an owner in respect of the 
 sale, yet the servant of a private owner has not, as a 
 general rule, authority to warrant. Thus T, applied to 
 P., who was not a dealer in horses, to sell him a horse. 
 P. sent his farm-bailiff. A., with the horse to T., and 
 authorized him to sell it for thirty guineas. A. warranted 
 che horse, but it was held that P. was not bound by this 
 warranty, {z) 
 
 These cases exactly illustrate the principle on which 
 t person who employs an agent to act for him is bound 
 iS regards third persons by the authorit}' which the agent 
 ippears to have, though as between the employer and the 
 agent the authority may be restricted considerably within 
 its apparent extent. The servant of a horse-dealer can 
 bind his master by a warranty even if ordered not to give 
 it, since he appears, from the usual course of dealing at a 
 horse-dealer's, to have such authority ; and the same 
 principle applies to the servant of a private person [246] 
 if sent to sell a horse at a public mart. On the 
 other hand, such a servant, if not sent to a fair or mart, 
 and if he has not habitually acted for his master, has no 
 authority except that which is actually given him, and as 
 he has no apparent authority, a third person dealing with 
 him must trust entirely to his actual authority ; and what 
 the case of Brady v. Todd established is that " in the case 
 of a single transaction of sale by the servant of a private 
 individual " there is no implied authority to warrant, 
 " because, in such a case, the buyer has no right to pre- 
 sume any authority in the servant beyond that which is 
 apparent on the particular occasion." {a) 
 
 ( y) Ho-.vard v. Shewr.nl, L. R. 2. C. P. 148 ; 36 L. J. 42, C. P. 
 (t) Brady v. Todfl. 30 L. J. 223. C. P. ; 9 C. B.. N. S., 502. 
 {a) Howard v. Shew.ird, L. R. 2, C. P. 151. mdnment of WlLl.ES, J. Com 
 "J^re Fcnn v. Harrison, 3 T. R. 759, 760.
 
 264 PARTIES rO ACTIONS. 
 
 A., the servant of P., had authority to draw billb of 
 exchange in P.*s name, and afterwards was turned out of 
 P.'s service. In this case it was said by HoLT, C. J., " if 
 he draw a bill in so little a time after, that the world can 
 not take notice of his being out of service ; or, if he were 
 a long time out of his master's service, but that kept so 
 secret that the workl can not take notice of it, the bill, in 
 these cases, shall bind the master." {b) 
 
 P. sent his servant, A., to T. to receive £60. A. re- 
 ceived, not £60, but a goldsmith's note. It was held that 
 P. was not bound by A.'s act in receiving the note instead 
 of the money ; {c) for this being a single transaction, A. 
 had no authority beyond that actually given him by his 
 master, and persons dealing with A. were bound to ascer- 
 tain what that authority really was. 
 
 But if T. deals with A., the servant of P., and knows 
 of the private agreement or instructions given by P. to 
 A., he can not charge P. upon any contract contrary to 
 
 that agreement, {d) 
 [247] A., the manager of a banking company, had au- 
 
 thority to draw, indorse, and accept bills on account 
 and for the benefit of the company. He indorsed a bill 
 for the accommodation of one T., "per proc." of the com- 
 pany. It was held, that the company were not bound by 
 such indorsement; {e) for that where the acceptance or 
 indorsement of a bill of exchange is expressed to be " per 
 proc," this is a notice to the indorsee that the party so 
 accepting or indorsing professes to act under an authority 
 from some principal, and imposes upon the indorsee the 
 duty of ascertaining that the party so accepting or indors- 
 ing is acting within the terms of such authority. 
 
 Ratification. — The rules as to ratification which govern 
 
 (b) V. Harrison, 12 Mod. 346, per Holt, C. J. 
 
 (c) Ward V. Evans, 2 Ld. R.iym. 928. 
 
 {d) Howard v. Braithwaite, i Ves. & R. 2og ; Smith, Master and Servant, 
 2nd ed., 168 ; Baines v. Ewing, I.. R. i, Ex. 323, judgment of Bramwkli,, B. 
 
 {e) Alexander v. Mackenzie, 6 C. B. 766. It is, however, often a difficult 
 matter to decide to what extent a third party is bound to push his inquiries in 
 order to ascertain that a person or agent is acting within his authority 
 ^ith V. McGuire, 27 L. J. 467, 469, Ex. ; judgment of Pollock, C. 3.\.
 
 PRINCIPAL AND AGENT. 265 
 
 a principal's right to sue on a contract apply mutatis mu- 
 tandis to his liability to be sued. (/) 
 
 Authority of some kind necessary.— K person is often 
 fixed with liability for a contract, the making of which he 
 has not in the ordinary sense of the word authorized, 
 since his liability may arise from the fact that he has 
 placed some person in a position in which such person 
 appears to have authority, or in other words, really has 
 implied authority, to contract for him. But no one can 
 ever be made liable as principal for a contract made on 
 his behalf by an agent, who has not given such agent 
 authority, either- express or implied, by his spoken or 
 written words, or by his acts, to contract for him. For 
 ^' no one can become the agent of another person except 
 by the will of that other person. His will may be mani- 
 fested in writing or orally, or simply by placing another in 
 a situation in which, according to ordinary rules of law, or 
 perhaps it would be more correct to say, according to 
 the ordinary usages of mankind, that other is understood 
 to represent and act for the person who has so 
 placed him ; but in every case it is only by the will [248] 
 of the employer that an agency can be created. 
 
 "This proposition, however, is not at variance with 
 the doctrine, that where one has so acted, as from his 
 conduct to lead another to believe that he has appointed 
 some one to act as his agent, and knows that that other 
 person is about to act on that behalf, then, unless he inter- 
 poses, he will in general be estopped from disputing the 
 agency, though in fact no agency really existed. 
 
 " Another proposition to be kept constantly in view is, 
 that the burden of proof is on the person dealing with 
 any one as an agent through whom he seeks to charge 
 anotlicr as principal. He must show that the agency did 
 exist, and that the agent had the authority he assumed to 
 exercise, or otherwise that the principal is estopped fiom 
 
 disputing it." {g) 
 
 Hence, where a master has not, cither expressly or by 
 
 ( f) See nittf. 
 
 (g) IVilc V. I-ca-k. 33 I.. J. 1^)1. 162. Ch., ju.lgin.nt of I.or.l CkANWORTH.
 
 266 PARTI RS TO ACTIONS. 
 
 implication, authorized his servant to pledge his credit, 
 his servant can not, b}- doin^^ so, render him liable to pay 
 lor goods so obtained. So where P.'s servant, A., injured 
 his master's carriage by careless driving, and without any 
 orders from P., left it with T., a coach maker, to be re- 
 paired, it was held that T. had no claim against P. for 
 the sum due for repairs. (//) 
 
 Nor, again, can a person be made liable simply because 
 a third party chooses to look upon or treat him as prin- 
 cipal in a transaction which he did not authorize. Thus 
 in a case where the defendant was sued by the executoi 
 of a public-house keeper, for the price of meat and drink 
 supplied to voters during an election, it was laid down 
 that " the plaintiff must prove an express contract, or a 
 contract implied between the defendant and his testatrix, 
 to pay for the meat and drink supplied by her to the 
 voters. The burden of proof is on the plaintiff. The first 
 question will be, whether any contract at all was entered 
 into with plaintiffs testatrix. If she supplied the 
 [249] meat and drink to the voters on a mere speculation 
 that the candidate, or some one interested in the 
 election, would, as a matter df honor, pay for them, no 
 contract was thereby created with any one." (?) 
 
 Actions against clubs. — The liability of members of 
 ordinary clubs, of provisional com.mittees, of volunteer 
 corps, and of other voluntary associations which are net 
 partnerships, {k) on contracts entered into on behalf of 
 the club or association, is not a question of law but of 
 fact ; (/) and when an action is brought against a defend- 
 ant on a contract, made, e. g., with the steward of a club. 
 " the plaintiff must prove that the defendant, either 
 himself or by his agent, has entered into that contract. 
 That should always be borne in mind in cases of this 
 class, for on most questions of this kind the real ground 
 
 {h) Hiscox V. Greenwood, 4 Esp. 164. 
 
 (i) Thomas v. Edwards, 2 M. & W. 216, 217, judgment of Parke, B. 
 (k) Compare Chapter XIII. 
 
 ^*') Compare Flemyng v. Hector, 2 M. & \V. 179, judgment of Abinger, C. 
 B., with Bright v. Hutton, 3 H. L. C. 341.
 
 PRINCIPAL AND AGENT. 267 
 
 of liability is apt to be lost sight of. As the defendant 
 did not enter into the contract personally, it is quite 
 clear that the plaintiff can not recover against the defend- 
 ant unless he shows that the person making the contract 
 was the agent of the defendant, and by him authorized 
 to enter into the contract on his behalf, and the question 
 is . ... whether there [is] . . . evidence . . . 
 that the person who actually ordered [the] goods was the 
 authorized agent of the defendant in making the contract 
 and that really is the question in all cases of this kind — 
 in all cases of principal and agent, master and servant 
 wherever the contract is not made personally by the de- 
 fendant." {di) 
 
 In the case of an ordinary subscription club the mere 
 fact of a person's being a member does not give the 
 committee of the club power to pledge his personal 
 credit, and he can not, therefore, merely on the ground 0I 
 his membership, be sued for the price of goods 
 supplied to the steward according to the order of [250] 
 the committee, {n) It seems also settled that the 
 mdividual members of the committee of a club are not, 
 merely as such, liable for the price of goods ordered by a 
 member of the committee, and supplied by a tradesman 
 upon credit for the purposes of the club. It must be 
 shown in order to fix any individual member of the com- 
 mittee with responsibility, that the contract was made 
 with his concurrence, or perhaps that the members of the 
 committee are authorized to pledge one another's credit. 
 {0) Hence, where two members of a club committee 
 were sued for the price of goods supplied to the club on 
 the order of another member of the committee, they were 
 held not liable. 
 
 " I think," said Aluerson, B., " that as the members 
 of a club generally are to be considered as not having au- 
 thorized anybody to deal witii tlicm upon credit, so here 
 
 {m) Flemyng v. Hector, 2 M. & W. 183 niflKmcnl of Pakkk, B. 
 \n) Flemynt' v. Ilcclor. 2 M. & W. 172. Compare Cockcri:ll v. Aucompte, 
 36 L. J. 194, C. I'. ; 2 C. B.. N. S.. 440. 
 {o) lodd V. Kn.ly. 7 M. & W. 405.
 
 268 PAR TIES TO ACTIONS. 
 
 the committee were authorized only to deal as a body foi 
 ready money. But at the same time if any of the mem- 
 bers of the committee choose to contract, not for ready 
 money, those members of the committee who have so 
 contracted are liable upon their own contract, and the 
 members who have not concurred in it are not liable, 
 unless that be the common purpose for which the com- 
 mittee was appointed." ^/) 
 
 If there is a division of opinion in the committee, and 
 the majority only give authority to the agent to contract, 
 those only are, it seems, liable on the contract who voted 
 lor it. {g) As, however, the reason why individual mem- 
 bers of a club are not liable for the price of goods suf^- 
 plied to the club is that the rules of subscription clubs 
 ordinarily show that it is not the intention of the mem- 
 bers that the dealing of the club should be on 
 [251] credit, or that the individual credit of the members 
 should be pledged, {r) the liability of individuals, 
 supposing they have done nothing to make themselves 
 personally liable, depends ultimately upon the rules of 
 the club. If they show that goods are intended to be 
 procured upon the credit of the members, the members 
 will be liable to pay for the goods so procured, {s) ' 
 
 The members of a volunteer corps, {i) or of a pro- 
 yisional committee, may or may not, according to cir- 
 cumstances, be liable to persons who supply goods or 
 render other services to the members of the corps or of 
 the committee. In each case the question is one of fact, 
 
 (/) Ibid., 435, judgment of Alderson, B. Compare Ibid., 8 M. & W. 505. 
 
 (<7) Ibid., 505. 
 
 (f) See Todd v. Emly, 7 M. & W. 432, judgment of Abinger, C. B. 
 
 {s) Cockerell v. Aucompte, 26 L. J. 194, C. V. ; 2 C. B., N. S., 440. 
 
 (/) Cross V. Williams, 7 II. & N. 675 ; 31 L. J. 145, Ex, 
 
 I. "Committees of clubs may and whether it is assumed by the 
 
 make themselves personally liable members depends upon the facts." 
 
 on contracts made by them. So far Whart. on Agents and Agency, 2 
 
 as concerns the members of such 461. 
 
 clubs, they are, of course, liable on The deacons of an unincorpora- 
 
 all contracts to which they ex- ted religious society cannot be held 
 
 pressly or impliedly assent. But personally liable on a contract 
 
 there must be s-ome such assent, made by other independent agents
 
 PRINCIPAL AND AGENT. 269 
 
 and not of law ; and the matter to be decided is, whether 
 the persons sued did or did not allow the goods, &c., for 
 the price of which the action is brought, to be supplied 
 on their credit, {u) 
 
 " In general, when a man is known to be acting and 
 contracting merely as the agent of another, who is also 
 known as the principal, his acts and contracts, if he 
 possesses full authority for the purpose, will be deemed 
 the acts and contracts of the principal only, and will 
 involve no personal responsibility on the part of the 
 aeent, unless the other circumstances of the case lead to 
 the conclusion that he has either expressly or impliedly 
 incurred or intended to incur such personal responsi- 
 bility." {x) 
 
 The exceptions to the rule under consideration are of 
 two kinds. They are either cases in which the agent 
 must be sued and the principal can not be sued, or else, 
 cases in which cither the principal or the agent may be 
 sued. 
 
 Of the eight following exceptions the four first, and 
 probably the eighth, are cases in which the agent must 
 be sued, and the principal can not be sued ; the 
 fifth, sixth, and seventh are cases in which either [252] 
 the principal or the agent may be sued. 
 
 Exception i. — Where an agent contracts by deed in his own 
 name. (2) 
 
 This exception is merely an application of the rule {a) 
 
 («) Bright V. Huttor, 3 II. L. C. 341. 
 
 (z) Story, Agency, s. 261. See Chapter V. 
 
 (2) Conf. Rule 17, Exception r. The remarks there made apiily, imuatis 
 mutandis, to actions against an agent. 
 
 (a) Rule 43. Applcton v. Binks, 5 P^^ast, 14S ; Berkeley v. Hardy, 5 B. & C. 
 355 ; White v. Cuylcr, 6 T. R. 176 ; Wilks v. Back, 2 East, 142 . Leake, Con- 
 tracts, 290. 
 
 of the society, though the deacons sociation in whose name goods 
 
 were ex officio agents for the busi- were taken for convenience, will 
 
 ncss affairs of the society. Devoss not be held personally liable 
 
 V.Gray, 22 Ohio St. 159. thereon. Stevenson v. Mathers, 67 
 
 The trustee of a voluntary as- 111. 123.
 
 270 PARTJJiS IV ACTIONS. 
 
 that the person to be sued on a contract by deed is the 
 person with whom the contract is expressed by the deed 
 to be made. 
 
 Exception 2.— rWliore <an agent draws, indorses, or accepts a 
 bill of exchange in his own name. 
 
 An agent is personally liable " to third persons on his 
 drawing, indorsing, or accepting, unless he either sign 
 his principal's name only, or expressly state in writing 
 his ministerial character, and that he signs only in that 
 character ; * unless,* to use the words of Lord Ellen- 
 BOROUGH, ib) ' he states upon the face of the bill that he 
 subscribes it for another ; unless he says plainly, I am the 
 mere scribe.' Thus, where the defendant, the agent of a 
 hanker, drew the following bill, ' Pay to the order of A. 
 ;i^50 value received, which place to the account of the 
 Durham Bank as advised,' and subscribed his own name, 
 it was held that the defendant was personally answerable, 
 (c) and he alone, though the plaintiff, the payed, knew 
 that he was only an agent." (d) ' 
 
 Though " the rule of law, as to simple contracts in 
 writing other than bills and notes, is, that parol evidence 
 
 (d) Leadbitter v. Farrow, 5 M. & S. 345. 
 
 (c) Sowerby v. Butcher, 2 C. & M. 368 ; 4 Tyr. 320. 
 
 ((/) Byles on Bills, 8th ed., 33. 
 
 I. Bradlee v. Boston Glass Co., Hale, 3 W. Va. 495 ; contra, Hovey 
 
 16 Pick. 347 ; Rank of North v. Magill, 2 Conn. 680. 
 
 America v. Hooper, 5 Gray, 567 ; So, of the titles " treasurer " or 
 
 Pentz V. Stanton, 10 Wend. 276; "director." Moss v. Livingston, 4 
 
 Anderson v. Shoup, 17 Ohio St. N. Y. 208 ; Rossiter v. Rossiter, 8 
 
 128; Lindo V. Castro, 43 Cal. 497. Wend. 494; Hills v. Bannister, 8 
 
 A note signed "A. C, agent," Cow. 31 ; Brinley v. Mann, 2 Cush. 
 
 binds A. C. only, though his em- 337; Collins v. Ins. Co., 17 Ohio 
 
 ployers had previously assumed St. 215. But see De Witt v. Wal- 
 
 similarly signed notes. Williams v, ton, 9 N. Y. 571. And in Means v. 
 
 Robbins, 16 Gray, yy ; Dubois v. Swormstedt, 32 Ind. 87, sealing 
 
 Canal Co., 4 Wend 285; Wood- with the seal of the corporation was 
 
 bury V. Blair, 18 Iowa, 572; Bick- held to relieve the agent's liability, 
 ford V. Bank, 42 111. 238 ; Rand v.
 
 PRINCIPAL AND AGENT. 271 
 
 is admissible to charge unnamed principals, . . . but 
 is inadmissible for the purpose of dischargmg the agent 
 who signs, as if he were principal, in his own name, 
 . . . yet it is conceived that the law as to nego- 
 tiable instruments is different in one respect : to wit, [253] 
 that where the principal's name does not appear, he 
 s not liable on a bill or note as a party to the instru- 
 ment." {e) 
 
 Exception 3. — Where credit is given exckisively to the agent. 
 
 It is possible that a third party with whom an agent 
 contracts as an agent on behalf of a known principal may 
 be willing to give credit to A., the agent, and not be 
 willing to give it to P., the principal. The party so 
 dealing with the agent can not afterwards sue the prin- 
 cipal. Thus, where T. sells goods to A. for the use of 
 P., who is known to be A.'s principal, but gives credit 
 exclusively to A., he can not, after having treated A, 
 throughout as the party with whom he contracts, treat 
 P. as the party liable ; (/) for " if the principal be known 
 to the seller at the time when he makes the contract, 
 and he, with a full knowledge of the principal, chooses to 
 debit the agent, he thereby makes his election, and can 
 not afterwards charge the principal." {g) 
 
 Debiting the agent is one proof that credit was given 
 to him exclusively, but this fact may also appear either 
 from the contract itself or from other circumstances. 
 Where, for instance, an agent in England buys for a 
 foreigner resident abroad, the agent is generally to be 
 considered as pledging his own credit, because it is 
 highly improbable that the seller would have given credit 
 to a foreigner. (//) But the question to whom was credit 
 given is in all cases one of intention, to be answered 
 
 (e) liyles on Bills, 8th ed.. 34. 35. See rent/, v. Stanloii, ro Wend. 271 
 I.eadbitterv. Fanow, 5 M. & S. 345 ; Hult v. Moriell. 12 Ad. & E. 745; 10 I 
 J. 52, Q. n. Compare Lindiis v. Uradwell. 5 C. U. 5S3 ; I? L. J. 121. C. P. 
 
 (/) Addison v. Gandasef|ui, 2 Smith, L. C, 6th ed., 313. 
 
 \g) 'J'homson v. Davenport, Ihid., 337, per I.nri.KDAI.K, J. 
 
 <h) Mahon.y v. Kekule, 23 \.. J. 54, C. P. ; 14 C. li. 3()0.
 
 2/2 PARTIES TO ACTIONS. 
 
 either from the contract or, where that is doubtful, from 
 the facts. (/) ' 
 
 [254] Exct-ption 4. — Where an agent contracts for persons 
 incapable of contracting. 
 
 If an agent contracts for persons incapable of con- 
 tracting, the agent is ordinarily held personally liable. 
 Thus, where certain persons, on behalf " of a parish in 
 England, made an agreement with the plaintiff to pave 
 the streets of the parish, and to pay him therefor, it was 
 held that the persons so contracting were personally 
 liable, for the parishioners, as such, could not be sued 
 therefor, {k) So where an overseer of the poor m England 
 contracted with tradesmen upon account of the poor, and 
 upon his own credit, it was held, that, as soon as he 
 received so much of the poor's money, it became his own 
 debt. (/) So where the business of a voluntary eleemosy- 
 
 (t) Thomson v. Davenport, 2 Smith, L. C, 6th ed., 327. 
 
 {k) Meiiel v. Wymandsold, Hardres, R. 205. 
 
 (/) Anon., 12 Mod. R. 559. See Lamljert v. Knott, 6 Dovvl. & Ryl. 127. 
 Cullen V. Duke of Queenslniry, i Bro. Ch. R. loi ; S. C, i Bro. Pail. Cases, by 
 Tomlins, 396 ; Lancaster v. P'ricker, i Bing. R. 201. See Hoskyns v. Slayton, 
 Cas. Temp. Hard. 376. 
 
 I. When the agent draws credit Evans v. Dunbar, 117 Mass. 546 
 
 to himself instead of avowing his Hovey v. Magill, 2 Conn. 680 
 
 agency, he becomes liable to the Reed v. Latham, 40 Conn. 452 
 
 third party dealing upon such Hall v. Bradbury, 40 Conn. 32 
 
 credit. Newhall v. Dunlap. 14 Me. Pentz v. Stanton, 10 Wend. 271 
 
 180; Goodwin v. Bowden, 54 Me. Spencer v. Field, 10 Wend. 87 
 
 424; Savage v. Rix, 9 N. H. 262; Waring v. Mason, 18 Wend. 425 
 
 Despatch Line v. Bellamy, 12 N. Taintor v. Prendergast, 3 Hill, 72 
 
 H 229; Simons v. Heard, 23 Pick. Fellows v. Northrup, 39 N. Y. 119 
 
 120; Ballou v. Talbot, 16 Mass. Meyer v. Barker, 6 Binn. 228 
 
 461 ; Taber v. Cannon, 8 Mete. Campbell v. Baker, 2 Watts, 83 
 
 460; Central Bridge v. Butler, 2 Harper v. Hampton, i Harr. & J. 
 
 Gray, 130; Haverhill Ins. Co. v. 622; York Co. Bank v. Stein, 24 
 
 Newhall, i Allen, 130; Fullam v. Md, 447; Deming v. Bullitt, i 
 
 West Brookfield, 9 Allen, i ; Gay Blackf. 241 ; McClellan v. Parker, 
 
 V. Bates, 99 Mass. 263; Wilder v. 27 Mo. 162; McCurdy v. Rogers, 
 
 Cowles, 100 Mass. 487 ; Southard 21 Wis. 197 ; Saveland v. Green, 
 
 V. Sturtevant, 109 Mass. 390; 36 Wis. 612.
 
 PRINCIPAL AND AGENT. 273 
 
 nary society was conducted by a committee, it was held, 
 that the)" were personally responsible to a baker who 
 supplied the establishment with bread at their request 
 {m) for it might be fairly presumed that he looked to the 
 committee for payment, and not to the subscribers at 
 large." {ri) But the presumption is one which can be re- 
 butted ; for the person dealing with the agent may have 
 known that he had no authority to bind his principals 
 {e.g., the members of the society), and yet have been con- 
 tent to deal with the agent, not upon his personal credit, 
 but upon the chance of being paid by his employees ; 
 and in this case the agent is clearly not liable. {6) 
 
 Exception 5. — Where the contract is made by the agent 
 himself, /. e., where the agent is treated as the actual party by 
 whom the contract is made, or in other words, where the 
 agent, though acting as such, incurs a personal responsibility. 
 
 " A person who is acting for another, and known [255] 
 by him with whom he deals to be so acting, may and 
 will be personally liable if he contracts as a principal, 
 and that whether he contracts by word of mouth or in 
 writing. The difference is, that, if the contract is by word 
 of mouth, it is not possible to say from the agent using the 
 words ' I ' and ' me,' whereas if the contract is in writing, 
 signed in his own name, and speaking of himself as con- 
 tracting, the natural meaning of the words is, that he 
 binds himself personally, and, accordingly, he is taken to 
 
 do so It is well settled that an agent is 
 
 responsible, though known by the other party to be an 
 agent, if, by the terms of the contract, he makes himself 
 the contracting party." (/) 
 
 (;;;) Burls v. Smith, 7 Bing. K. 705. See Doubleday v. Muskett, 7 Hintj. R 
 1 10. 
 
 («) Story, Agency, s. 285. 
 
 (o) IbiH., s. 287. 
 
 (p) Williamson v. Barton, 31 L. R. 174, Ex., judgment of Bramwell, B. 
 See Story. Agency, s. 269; Higgins v. Senior, 8 M. & W. 834 ; 11 L. J. 199. 
 Ex. ; Parker v. Winlo, 7 E. & B. 942 ; 27 L. J. 49. Q- B. ; Lcnnard v. Robin- 
 son, 5 E. & B. 125 ; 24 L. J. 275, Q. B. Compare P^islier v. Marsh, 34 L. J., 
 177 Q. B. ; 6 B & S. 411. If. however, credit is given to the agent exclusively, 
 the case falls within Exception 3. 
 18
 
 274 PARTIES TO ACTIONS. 
 
 If the contract is by word oi mouth, it is merely a 
 question of evidence whether the agent intended to make 
 himself a part}' to the contract. If the contract i*? m 
 writing, the question of an agent's liability depends upon 
 points of interpretation. Thus a charter-party is made 
 between A., ''agent for P.," and T., and signed by A., 
 without an}^ restriction. A. is personally liable, {q) 
 
 A contract is entered into by A., who appears in the 
 body of it to be the contracting party, but who oigns it 
 " by authority of, and as agent for. P., a merchant abroad." 
 A. is personally liable ; (r) since " many cases have decided 
 that it is not sufficient to free the parties to a contract from 
 personal liability, that they state in the contract that they 
 enter into it as agents for another person; buL that the 
 whole instrument is to be looked at in order to sec 
 
 whether the contract is made by them as principals 
 [256] or as agents." {s) So, again, a fortiori, where A. 
 
 contracts in his own name without mentioning his 
 principal, though the fact of his being an agent is known 
 to the other party, A. is personally liable. (/) But where 
 
 a charter-party was signed " for P. of L -, A. as agent," 
 
 A. was held not personally liable, on the ground that it 
 woLdd require extremely strong words in the body of the 
 contract to control the effect of that form of signature, (?/) 
 and where A. signed " for P. and Co.," A. was held not 
 liable, {x) The fact, however, that an agent is clearly 
 liable on a written contract, does not free his principal 
 from liability ; for, though a person who appears to be 
 liable on the face of a written contract can not give evi- 
 dence to show that he is not liable (since to do this would 
 
 iq) Parker v. Winlo, 7 E. & B. 942 ; 27 L. J. 49, Q. 15. 
 
 {r) Lennard v. Robinson, 5 E. & B. 125 ; 24 L. J., 275, Q. B. 
 
 {s) Lennard v. Robinson, 24 L. J., 277, Q. B., judgment of Coleridge. J. 
 
 (t) Higgins V. Senior, 8 M. & W. S34; 11 L. J. 199, Ex. ; but conf. Wake 
 V. Harrop, 31 L. J., 451 Ex. ; I H. & C. 202 (Ex. Ch.). Price v. Walker, L. R. 
 5, Ex. 173. 
 
 (m) Deslandes v. Gregory, 2 E. & E. 610 ; 30 L. J. 36, Q. B. (Ex. Ch.) ; but 
 conf. Reid v. Dreaper, 3c L. J. 268, Ex. ; 6 H. & N. S13 ; Cocke v. Wilson, 
 26 L. J. 15, C. P. ; I C. B., N. S., 153. Wilson v. Zulueta 19 L. J., 49 
 Q. B. 
 
 [x) Redpath v. Wigg, L. R. i, Ex. 335 ;Ex. Ch.).
 
 PRIXCIPAL AXD AGENT. 275 
 
 be to contradict the written contract), there is notl ing to 
 prevent the production of evidence that a person who is 
 not liable on the face of a contract is in reality chargeable 
 under it. {y) 
 
 Exception 6. — Where the agent is the only known or osten- 
 sible principal, or where a contract (not under seal) has been 
 made by an agent in hir, own name for an undisclosed {z) 
 principal, {a) 
 
 A. contracts with T. in reality as an agent for P., but 
 it is not known or stated to T. that A. is contracting as 
 an agent. A. contracts with T., and states himself 
 to be an agent, but does not give T. the name of his [257] 
 principal, P. In either case T. may, on discovering 
 that P. is principal, sue either P. or A. 
 
 Exception 7. — Where money received by an agent for his 
 principal has been paid under a mistake of fact, or obtained 
 by means of a tort. 
 
 Payment to a clerk, servant, or other agent, being 
 payment to his employer or principal, (/) the person who 
 pays money under circumstances which give him a right 
 to recover it back may always sue the principal, and, as 
 a general rule, can not sue the agent, {g) But a person 
 who has a right to recover money from a principal may 
 also sue the agent to whom the money is actually paid in 
 ihe following cases. 
 
 If T. pays money to A. for P. in consequence of a mis- 
 
 iy) Garrett v. Hanaiey, 4 B. & C. 664 ; Bateman v. Phillips 16 East, 356 
 (^x Ch.) ; Patterson v. Gandasequi, 15 East, 62 ; 2 Smith, L. C, 6th ed.. 313 ; 
 Sowerby v. Butcher. 2 C. & M. 368 ; 4 Tyr. 320 ; I.efeuvre v. Lloyd, 5 Taunt 
 749 ; I Marsh, 318 ; Higgins v. Senior, 3 M. & W. 844, 845. 
 
 {z) For meaning of " undisclosird " principal, see ante. 
 
 (a) See Sims v. Bond, 5 B. & Ad. 389 ; 2 Smith, L. C, 6ih ed.. 355 ; Pat 
 terson v. Gandasequi, Ibid., 313 ; Thomson v. Davenport, Iliid., 327. 
 
 (/) Paley, Agency, 388; Smith, Master and Servant, 2nd ed., 227; Duke 
 of Norfolk V. Worthy, I Camp. 337. 
 
 (g) .Sadler v. I- vans, 4 Burr. 1984; Eddcn v. Rc.id. 3 Camp. 33 » ; conf 
 Stephens v. Bidcock. 3 B. & \d. 354 ; Bamford v. Shutlleworlh, M A. Ac E 
 036
 
 2-6 PARTIES TO ACTIONS, 
 
 take of fact, T. may, on giving notice to A., and provided 
 A. has not paid the moiicv over, or done what is equivalent 
 to paving it over, bring an action against A. for its recov- 
 er}-. For " it is clear law that an agent who receives 
 money for his principal is liable as a principal as long as 
 he stands in his original situation, and until there has 
 been a change of circumstances by his having paid over 
 the money to his principal, or done something equivalent 
 to it." (//) Where A. sold to T. a bar of silver received 
 from P., his principal at Gibraltar, and, owing to a mis 
 calculation as to the number of ounces in the bar, T. 
 paid A. more than the price agreed upon, it was held 
 that T. could sue A. for money received, it being ad- 
 mitted that no money had been paid by the defendant to 
 his principal, nor any other thing done to create a change 
 
 of circumstances. (/.) So where money is paid by 
 [258] mistake to an agent, and placed by him to the account 
 
 of his principal, but not paid over, an action will lie 
 against the agent at the suit of the person paying the 
 money ; for the mere passing such money in account with- 
 out any fresh bills accepted or further sums advanced for 
 the principal in consequence of it, is not equivalent to 
 the payment of it over, {k) 
 
 " The principle, in short, of law is clear, that if money 
 be mispaid to an agent for the use of his principal, and 
 the agent has paid it over, he is not liable to an action 
 by the person who mispaid it, because it is just that one 
 man should not be a loser by the mistake of another : 
 and the person who made the mistake is not without 
 redress, but has his remedy over against the principal. 
 On the other hand, it is just, that, as the agent ought not 
 to lose, so he should not be a gainer by the mistake ; 
 and, therefore, if after the payment so made to him, and 
 before he has paid the money over to his principal, the 
 person corrects the mistake, the agent can not afterwards 
 pay it over to his principal without making himself liable 
 
 (h) Cox V. Prenlice, 2 M. & S, 344, per Ellenbokough, C. J. 
 
 (0 Ibid. 
 
 (>fe) BuUer v. Harrison, Cowp. 565
 
 PRINCIPAL AND AGENT. 277 
 
 to the real owner ^or the amount." (/) It is, however, 
 essential in order to fix the agent with liabiHty, that he 
 should not have paid the money over, or done anything 
 equivalent to paying it over before he receives notice 
 not to pay it. {vi) But if the agent knows that the 
 person paying the money intends to dispute his right to 
 detain it, and if such person has given him notice thereof, 
 and the agent in consequence hastens the payment over 
 to his principal, his doing so is a species of fraudulent act 
 for which he may be liable to the person from whom the 
 money is received. («) 
 
 The doctrine that an agent is not liable to be sued for 
 money received to the use of his principal, does not apply 
 to cases where the agent gets the money into his 
 hands by means of a tortious act, whether the [259] 
 wrongful act was committed by the orders of his 
 employer or not. For all persons concerned in a tort are . 
 principals, {o) and as the party injured might bring an 
 action against the servant for damages sustained in con- 
 sequence of his wrongful act, so he may waive his righ< 
 to proceed in that form of action, and sue for the money 
 received by the wrong-doer. And in such cases it is no 
 defense that the agent has paid over the money received 
 to his principal. Where A., by the direction of P., his 
 father, who claimed to be executor of T.'s deceased wife, 
 took from a box of T.'s, money, which A. asserted to 
 belong to his father, and paid it over to him, it was held, 
 that A., though he acted as an agent, was liable to T. in 
 an action for money received, {p) since " the defendant 
 was a wrong-doer in taking the money, and would have 
 been liable to the plaintiff in trespass. The j^laintilT, 
 however, waives the tort, and sues the defendant for 
 money had and received ; and the defendant can not 
 relieve himself from liability by paying over the money 
 
 (/) \\>'u\., per MANsriKl.D, C. J. 
 
 (tn) Holland v. liassel'., I B. & S. 424 . 30 L. J. 308. Q. H. ; 4 B. & S. 14; 
 •J2 L. J., 297, Q. B. (Ex. Ch.). 
 
 (n) Ibid.. 32 I.. J.. 298, Q. n. (Kx. Ch.), judgment, of Erle, C. J. 
 
 (o) Sec Chapter XXV. 
 
 ip) Tubman v. Hopkins, 4 M. & G. 389.
 
 278 PARTIES TO ACTIONS. 
 
 to another, as he might have done had the or ginal tak- 
 ing been lawful. This circumstance distinguishes the 
 . . . case fiohi Stephens v. Badcock, {q) for there the 
 defendant received the money as agent for a party who 
 was entitled to receive it, whereas here the receipt was 
 altogether wrongful, and it must be taken with all its 
 consequences." (r) 
 
 So where an action was brought against the governor 
 of a prison for an extortionate charge exacted from a 
 prisoner, it was held no defense that he had accounted to 
 the proper authorities for all sums received on account of 
 the jail. {/) 
 
 Exception 8. — Where an agent has signed certain contracts 
 on behalf of a limited company without using the word 
 " limited." 
 
 [260] The Companies Act, 1862, contams stringent pro- 
 visions to compel limited companies (/) and their offi- 
 cers to use the word " limited," as part of the name of the 
 company in matters relating to its business, {u) and persons 
 signing or authorizing the signature on behalf of a limited 
 company of any bill of exchange, promissor}' note, check, 
 or order for money or goods, in which the word " limited " 
 is not used as directed, are themselves liable for the 
 amount unless the same is duly paid by the company, [v) 
 
 The right to sue either the principal or the agent at 
 the option of the plaintiff is subject to certain limitations 
 intended to secure justice to all the parties concerned. 
 
 I St. The right to sue either the principal or the agent, 
 is a right of choice. 
 
 "The very expression, that . . . the contractee 
 has an election to sue agent or principal, supposes that he 
 
 {q) 3 B. & Ad. 354. 
 
 (;') Tugman v. Hopkins, 4 M. & G. 400-402, judgment of Tinual, C. J. 
 (s) Miller v. Aris, 3 Esp. 231. 
 [t) See Chapter XIV., post, 
 (u) Companies Act, 1862, ss. 41, 42. 
 
 (v) Ibid., s. 42 ; Penrose v. Martyr, E. B. & E. 499 ; 2S L. J. 28, Q. B. ; I 
 Lindley, Paitnersb'p, 2nd ed.. 389.
 
 PRINCIPAL AND AGENT. 279 
 
 can only sue one of them, — that is to say, to judgment. 
 For it may be that an action brought against one might 
 be discontinued, and fresh proceedings be well taken 
 against the other." (w) 
 
 Hence where an action has been brought against the 
 master of a ship and prosecuted to judgment, a separate 
 action can not be maintained for the same cause of action 
 against the owner, {x) 
 
 2ndly. The right to sue either the principal or the 
 agent may be barred by circumstances, which show that 
 its exercise would work injustice to the party sued. 
 
 The chief, though not, perhaps, the only case in which 
 the creditor loses his right to sue the principal, is where 
 the creditor has so dealt with the agent as to place 
 the principal in a worse situation than he ought to [261] 
 be in. (7) " Although the person who has dealt 
 with an agent believing him to be a principal, may elect 
 to treat the after-discovered principal as having conti-acted 
 with him ; {z) still, if the principal, following the ordinary 
 course of business, has, after his liability to the contrac- 
 tor is complete, altered the state of his accounts with the 
 agent, this rierht of the contractor exists subject to the 
 state of those ctccounts." {ii) Hence it has been laid 
 dcnvn, that "if the principal has paid the agent, or if the 
 state of the accounts between the agent and the principal 
 would make it unjust that the seller should call upon the 
 principal, the fact of payment or such a state of accounts 
 would be an answer to an action brought by the seller, 
 where he had looked to the responsibility of the agent ; " 
 ib) and the law on the subject has thus been somewhat 
 more precisely summed up by Lord Ellenborougii, 
 C. J. :— " A oerson selling goods is not confined to tlie 
 credit of a broker who buys them, but may resort to the 
 principal on whose account they are bought. . . It he 
 
 {'iu) I'ricstlcy v. Fcrnie, 34 L. J. I75. Kx., judgment of Hkamwkli,, B. 
 
 (x) Ibi<l., 1-2, Ex. ; 3 H. & C. 97?- 
 
 {y) .See ilcald v. Kenworihy, 10 Exch. 745, juilgmci.t of Tollock, C. B. 
 
 (2) Sec ante. 
 
 (a) 'llioiiison V. Davcn])ort, 2 Smith, L. C. Gtlicil., 347, notes. 
 
 (^b) Ibid., 335, judi^inent of I5avi,i:V, J
 
 280 PARTIES TO ACTIONS 
 
 lets the day of payment go by, be may lead the principal 
 to suppose that he trusts solely to the broker; and if 
 in this case the price of the goods has been paid to the 
 broker, on account of the deception, the principal shall be 
 discharged." {c) 
 
 In order to deprive the creditor of his right of acti(;n 
 against the principal, it is necessary that something in the 
 course of proceeding on the creditor's own part should 
 have placed the principal in a worse position than he 
 otherwise would have been in ; and hence mere payment 
 by the principal to the agent of the money to be paid to 
 the creditor does not, in spite of the expressions used in 
 
 Thomson v. Davenport, of itself discharge the 
 [262J principal from liability. The law is thus laid down 
 
 by Parke, B. : — " The plea simply states that after 
 the contract was entered into between the plaintiffs and a 
 third party, the agent of the de%nddnt, under circumstan- 
 ces which rendered the defendant liable upon it, the latter 
 paid the agent. I am of opinion that this is no defense to 
 the action. There are no doubt cases and dicta which, 
 unless they be understood with some qualification, afford 
 ground for the position taken by the counsel for the de- 
 fendant " {sc, that the mere fact of payment to the agent 
 discharged the principal). But " there is no case where 
 the plaintiff has been precluded from recovering, unless 
 he has in some way contributed either to deceive the 
 defendant or to induce him to alter his position." {d) It 
 is, in short, necessary in order to exempt the principal 
 from being sued, that something must occur to make it 
 unjust to call upon him for payment: as, for instance, 
 where the seller tells the principal that he v/ill look to the 
 agent for payment, and the principal in consequence pays 
 the agent, {e) The same principle applies to the right to 
 sue the agent. Thus, as has been already pointed out, a 
 person who under a mistake pays money to an agent for 
 a principal, can not recover it back from the former after 
 
 (c) Kymer V. Suwercropp, I Camp. 1 12, judgmajit of Ei.LENiiOROUGH ('. J. 
 (</) Heald v. Kenworlhy, 10 Exch. 745, 746, judgment of Parke, B. 
 {e) Ibid., 744, per Parke, B.
 
 PRINCIPAL AND AGENT. 281 
 
 he has paid it over to his employer, since it would be 
 unjust then to sue the agent. 
 
 Rule 54. — An agent who, without having au- 
 thority, enters into a contract on behalf of a principal, 
 can not himself be sued on the contract, but is 
 otherwise liable/ 
 
 Where a person, though without authority, enters into 
 a contract professedly as agent for another person, 
 he can not be sued for a breach of the contract. " I [263] 
 think," says Lord Campbell, C. J., " that where it 
 clearly and expressly appears that a person really acting 
 as agent fairly contracts as such agent in the name ol his 
 principal, and professes to make that principal liable, the 
 agent is not liable to be sued upon the contract. He may 
 be sued so as to make him liable in damages for the loss 
 sustained by the person with whom he has entered into 
 the contract. Ewt to say that he is personally liable upon 
 a contract which he really makes as agent, would be to 
 make a contract instead of construing that which the par- 
 ties themselves have made." (/) 
 
 (/) Lewis V. Nicholson, 21 L. J. 316, Q. B, judgment of Campbell, C.J. -, 
 Jenkins v. Hutchinson, 13 Q. B. 744 ; 18 L. J. 274, Q. B. ; Thomson v. Daven- 
 port, 2 Smith, L. C, 6th ed., 340-346 ; Godwin v. Francis, L. R. 5 C. P. 295. 
 
 I. He may be sued on implied that capacity undertakes to make 
 
 warranty of agency for damages, a contract binding upon his princi- 
 
 Johnson v. Smith, 21 Conn. 627 ; pal, is an action on the case for de- 
 
 Baltzen v. Nicolay, 53 N. Y. 467 ; ceit and not an action of assumpsit 
 
 Munnikuyson v. Dorsett, 2 Harr. upon the contract. * * * If 
 
 & G. 374; Campbell v. Hillman, one without authority undertakes 
 
 5 B M on. 515 ; or for fraud ; Hart- to make a contract for another, the 
 
 lett V.Tucker, 104 Mass. 336; White contract is necessarily void. It is not 
 
 V. Madison, 26 N. Y. 1 17 ; M'Curdy the contract of the principal, for the 
 
 V. Rogers, 21 Wis. 197; Lander v. pretended agent had no power to 
 
 Castro. 43 Cal. 497. Walton, J., bind him. It is not the contract of 
 
 says, in Noyes v. Loring, 55 Me. the agent, for in making it he did not 
 
 408: "The remedy against one attempt to bind himself. How. then, 
 
 who fraudulently represents him- can such a contract be the basis 
 
 self as the agent of another, and in of a su^t ? Very clearly it cannot.
 
 782 PARTIES TO ACTIONS. 
 
 Thoii2:h the agent can not be sued upon the contract 
 he may be sued so as make him Hable in damages. 
 
 If he has fraudulently represented himself to have 
 authority, he is liable to an action for false representa- 
 tion, [g) and whether his representation be fi-audulent or 
 not, he can be sued for a breach of the implied contract 
 that he had authority to contract ; {h) for " a person who 
 induces another to contract with him as the agent of a 
 third party by an unqualified assertion of his being 
 authorized to act as such agent, is answerable to the 
 person who so contracts, for any damages sustained by 
 reason of the assertion of authority being untrue. This 
 is not the case of a bare mis-statement by a person not 
 bound by any duty to give information. The fact that 
 the professed agent honestly thinks that he has authority 
 affects the moral character of his act ; but his moral 
 innocence, so far as the person whom he has induced to 
 contract is concerned, in no way aids such person or 
 alleviates the inconvenience and damage which he 
 [264"] sustains. The obligation arising in such a case is 
 well expressed by saying that a person, professing 
 to contract as agent for another, impliedly, if not ex- 
 pressly, undertakes to or promises the person who enters 
 into such contract, upon the faith of the professed agent 
 being duly authorized, that the authority which he pro- 
 fesses to have does in point of fact exist." {i) 
 
 A. fraudulently represents to T. that he has authority 
 to contract for P. with intent to deceive. A., when he 
 has no authority from P. and knows it, nevertheless 
 makes a contract with T. as having such authority. A., 
 though not having, in fact, any authority to contract as 
 agent of P. with T., yet does so under the bona fide 
 belief that he has authority, e. g.. from having received 
 a forged power of attorney, T. can, in the first and 
 
 {g) Thomson v. Davenport, 2 Smith. L. C, 6th ed., 346. 
 
 (k) Ibid. ; CoUen v. Wright. 7 E. & B. 301 ; 26 L. J. 147- Q- ^>- ; 8 E. & B. 
 647 ; 27 L. J. 215, Q. B. (Ex. Ch.); Randell v. Trimen, 18 C. B. 786 ; 25 L. J. 
 307. C. P. ; Spedding v. Nevell, L. R. 4, C. P. 212 ; Godwin v. Francis, L. R. 
 5, C. P. 295. 
 
 it) Collen V. Wright, 8 E. & B. 657, 658, judgment of \ViLLES, J.
 
 PRINCIPAL AND AGENT. 283 
 
 second of these cases, sue A. for false representation, and 
 in all of them for a breach of the implied contract, that 
 he has authority to contract as agent of P. {k) 
 
 It would appear that if one person without authority 
 accepts bills on behalf of himself and others, he is Hable 
 in an action on the bill. 
 
 Hence where A., without authority, accepted a bill for 
 a company or partnership of which he was a member, in 
 the following- terms: "A. accepted per proc. P. and C. 
 Mining Company ; " it was held that he was personally 
 liable. (/) 
 
 Exception. — Where the authority of an agent has without 
 his knowledge expired at the time of his malcing the con- 
 tracts. 
 
 If an agent has received authority to contract for his 
 principal, and the authority has expired by the death of 
 the principal without the knowledge of the agent, and the 
 agent, though his authority has expired, believes himself 
 to have, and contracts as having, authority, he is not liable 
 to an action. 
 
 A wife, during the absence of her husband [265] 
 abroad, contracted as his agent for goods to be sup- 
 plied for her ; it was held that she was not liable for the 
 price of goods supplied after his death, and before informa- 
 tion of it reached her. {111) " All the cases in which the 
 agent has been held personally responsible will be found 
 to arrange themselves under one or other of these three 
 classes. ... It will be found that he has either been 
 guilty of some fraud, has made some statement which he 
 knew to be false, or has stated as true what he did not 
 know to be true, omitting at the same time to give such 
 
 {k) Thomson v. Davenport, 2 Smith, L. C. Olh e<l., 327. 
 
 (/) Nicholls V. Diamond, 23 L. J. I, Ex. ; 9 ICxch. 154 ; Owen v. Van Uster, 
 20 L. J. 61, C. P.; 10 C. H. 3i3- 
 
 (///) Smout V. libcry, lo M. & W. i ; 12 L. J. 357, Kx. Compare Blades v 
 Free, 9 B. & C. 167. Sec Chapter .XVI.
 
 284 PARllHS TO ACTIONS. 
 
 information to the other contracting party as would 
 enable him, equally with himself, to judge of the authority 
 under which he proposed to act. . . . Here the agent 
 had, in fact, full authority to contract, and did contract in 
 the name of the principal. . . . The continuance of 
 the life of the principal . . . was a fact equally within 
 the knowledge of both contracting parties. If then the 
 true principle derivable from the cases is that there must 
 be some wrong or omission of right on the part of the 
 agent in order to make him personally liable on a contract 
 made in the name of his principal, it will follow that the 
 agent is not responsible in such a case as the present." 
 {71) Though the agent in this case was a married woman, 
 the judgment " is founded on general principles applicable 
 to all agents." {0) 
 
 in) Smout V. Ilbery, lo M. & W. lo. II, per Curiam 
 io) Ibid.
 
 PARTNERS AND COMPANIES. 285 
 
 CHAPTER XIII. 
 
 PARTNERS AND. UNINCORPORATED COMPANIES. 
 
 Rule 55. — A firm or unincorporated company 
 can not be sued in its name as a firm or as a com- 
 pany, but must be sued in the nanies of the indi- 
 vidual partners or members composing the firm or 
 company, {a) 
 
 Rule 56. — All persons who are partners in a firm, 
 or members of an unincorporated company, at the 
 time when a contract is made by or on behalf of the 
 firm or company, should be joined in an action fo" 
 the breach of it. (b) 
 
 Where partners contract jointly, either in their indi- 
 vidual names, X., Y., and Z., or in the name of the firm, 
 M. and Co., they must all be sued in an action on the 
 contract. A contract, further, made by one partner on 
 behalf of the firm is generally to be held a contract by 
 the firm ; for each partner is, within the scope of the 
 partnership business, an agent for his co-partners, and 
 has authority for and on behalf of all of them to 
 make such contracts as are necessary, proper, and [267] 
 customary in the course of their business, {c) 
 
 " The liability of one partner for the acts of his co- 
 partner is, in truth, the liability of a principal for the acts 
 
 (a) For an explanation of this rule, see anU. What is there said as to ac- 
 tions by, applies, mutatis mutandis, to actions against, partners. 
 
 {h) See Rules 13 and 21. 
 
 (c) Harrison v. Jackson, 7 T. K. 207, 210; Leake, Contracts, 277; Cox v. 
 Hickman. 3 H. L. C. 268, 279; 30 L. J. 125, C. P.
 
 286 PARTI l-S TO ACTIONS. 
 
 of his assent. When two or more persons are engaged as 
 partncis in an ordinary trade, each of them has an im- 
 plied authority from the others to bind all by contracts 
 entered into according to the usual course of business in 
 that trade. Every partner in trade is, for the ordinary 
 purposes of the trade, the agent of his co-partners, and all 
 are, therefore, liable for the ordinary trade contracts of 
 the others. Partners may stipulate among themselves 
 that some one of them only shall enter into particular con- 
 tracts, or into any contracts, or that, as to certain of their 
 contracts, none shall be liable except those by whom they 
 are actually made ; but with such private arrangements 
 third persons dealing with the firm without notice have 
 no concern. The public have a right to assume that every 
 partner has authority from his co-partner to bind the 
 whole firm in contracts made according to the ordinary 
 usages of trade." {d) The partnership, therefore, X., Y., 
 and Z., are bound by, and should be sued on, any contract 
 made by X. on their behalf, provided it be one within the 
 
 scope of his authority as a partner, {e) 
 [268] The rule is modified by the existence of dormant 
 
 and nominal partners. 
 A dormant partner (/) always may be joined in an 
 action against the firm. (/) Thus, if X. and Y. are osten- 
 
 {d) Cox V. Hickman, S II. L. C. 304, judgment of Lord Cranworth. Com- 
 ;iare the judgment of the Couit in Hawken v. Bourre, 8 M. & W. 703, 710. 
 
 {e) In determining whether a given transaction is within the limit of X's au 
 Ihority, the lollowing distinction should be borne in mind : — 
 
 Certain contracts are (jrima facie within the authority of the member of an 
 ordinary firm. Thus a partner may, as such, in general, draw, accept, or in- 
 dcrse bills of exchange in the name of the firm (Harrison v. Jackson, 7 T. R. 
 207, 210 ; Norton v. Seymour, 3 C. B. 792 ; Carter v. Whalley, i B. & Ad. Ii ; 
 Stephens v. Reynolds, 5 H. &N. 513; 29 L. J. 278, Ex.). 
 
 There are other contracts which a partner, as such, has no power to enter 
 into on Ijehalf of the firm. Thus a partner can not execute a deed without an 
 authority under seal to do so (Harrison v. Jackson, 7 T. R. 207), and the power 
 of a partner to bind his firm depends to a great extent upon the nature of the 
 partnership business. As a partner, in short, occupies the position of an agent, 
 the extent of his auihority to l)ind his principal (the firm), will be found to be 
 partly a question of law, and partly a question of fact. He has, speaking gen- 
 erally, that authority which a person dealing with the firm would, under the 
 whole circumstances of the case, be justified in supposing him to possess. 
 
 (/) See ante.
 
 PARTNERS AND COMPAXfES. 287 
 
 sible partners, and Z. a dormant partner, an action may 
 always be brought against X., Y., and Z., even by a per- 
 son who, at the time he entered into the contract sued 
 upon, did not know of Z.'s existence ; for persons who 
 deal with the firm are " entitled to hold all who are part- 
 ners bound by the prima facie authority conferred on the 
 manager, and that equally, whether the persons sought to 
 be charged were persons to whom the creditors gave 
 credit, or dormant partners, of whose existence they were 
 unaware. I think the justice of this rule, as apphcable 
 to dormant partners, very questionable ; but I do not think 
 it open to question that it is the rule of law." ( g) 
 
 When, therefore, it is intended to sue a person as a 
 dormant partner, what is to be considered is not whether 
 credit was given to him, but whether, as a matter of fact, 
 he was a partner at the time the contract was entered 
 into. His liability depends, not upon his having shared 
 in the profits, but upon the business having been carried 
 on on his behalf, /. e., upon his having stood in the 
 position as principal towards the other partners. 
 
 A dormant partner never need be joined where the 
 other partner or partners have led the plaintiff to suppose 
 that he or they alone constitute the firm, {h) If, 
 for example, a person carries on a business in his [269] 
 own name, e. g., as X., a plaintiff can not be com- 
 pelled in an action against him to join a dormant partner, 
 Y. (z.) At the same time, the person who deals with a 
 firm, e. g., X. and Co., can not treat X. (supposing the firm 
 in reality to consist of X. and Y.) as solely liable simply 
 because the creditor supposed that X. was the only person 
 in the firm. 
 
 " If a party contracting with another delivers an in- 
 voice made out to a firm, and nothing is said as to the 
 parties composing the firm, and he afterwards brings an 
 action against the individual, he takes his chance of that 
 
 (ff) Cox V. Hickman, 8 H. L. C. 278. opinion of I'.i.MKHrKN, J. ; Ihid., 312 
 313, jiuigment of Lord WKNSi.EVt)AI.E. 
 
 (h) I Lindlcy, I'arlner.sliip. 2nd ed., 485, 486 ; Bonlield v. Smith, 12 M. & 
 W. 405 ; 13 L. J. 105, Ex. ; I)c Mantort v. Saunders, i H. & Ad. 398. 
 
 (i) Mulictt V. lluok. I M. & M. 88.
 
 2S8 PARTI I-:S TO ACTIONS. 
 
 individual being the cmlv person in the firm. If, indeed, 
 the party represents himself as the only person com- 
 posing the firm, an action may be brought against him 
 alone; or if, on being asked who are his partners, he 
 refuses to give any informaticMi, that may be evidence for 
 the jury, whether he did not hold himself out as solely 
 liable. But a party can not succeed against one of sev- 
 eral partners because he supposes him to be alone liable. 
 It ought to be shown, in point of fact, either that the 
 defendant is solely liable or that he represented himself 
 to be so. In the present case, as the plaintiff knew that 
 (X.) and Co. constituted a firm, it was his duty to be sat- 
 isfied as to the parties of whom the firm consisted." {k) 
 
 A nominal partner (/) always may be joined in an action 
 against the firm brought by a person to whom he holdc 
 himself out, or, rather, suffers himself to appear, as a 
 partner. A person, therefore, who holds himself out to 
 the world, i. e., to every one dealing with the firm, as a 
 
 partner, can always be sued. 
 [270] But where the nominal partner has never been 
 
 knovvn as such to a particular person, it would 
 rather appear {m) that such person can not join him in an 
 action against the firm, for " the rule which imposes on a 
 nominal partner the responsibilities of a real one, is framed 
 in order to prevent those persons from being defrauded 
 or deceived who may deal with the firm. Bvit where the 
 person dealing with the firm has never heard of him as a 
 component part of it, that reason no longer applies." {n) 
 A plaintiff''s right to sue a nomijial partner depends 
 
 {k) Bonfield v. Smith, 13 L. J. 106, Ex., judgment of Lord Aeinger, 
 C. B. 
 
 It is otherwise if the ostensible partners held themselves out as being the 
 •nly members of the firm. When they have done this they can not insist upon 
 the plaintiff joining the dormant partners as co-defendants (De Mantort v, 
 Saunders, i B. & Ad. 398). 
 
 (/) See ante. 
 
 (;«) See con'ra Young v. Axtell, cited Waugh v. Csrver, i .Smith, L. C, 6th 
 ed., 846, where it is stated by Lord Mansfield, " that as the defendant had 
 suffered her name to be used in the business, and held herself out as a partner, 
 she was certainly liable, though the plaintiff did not at her time of dealing know 
 that she was a partner or that her name was used " (Ibid., 847). 
 
 («) Waugh V. Carver, i Smith, L. C, 6th ed.. 860.
 
 PARTNERS AND COMPANIES. 289 
 
 upon its being proved " that the defendant hela nimself 
 out, not to the world, for that is a loose expression, but 
 to the plaintiff himself, or under such circumstances of 
 publicity as to satisfy a jury that the plaintiff knew of it, 
 and believed him to be a partner." {o) The rule as to a 
 nominal partner's liability to be sued may, if this view 
 of his position be correct, be thus summed up. He is 
 simply an apparent partner, and may be sued by any 
 person to whom he appears to be a partner, but can not 
 be sued by any person to whom he has not appeared to 
 be a partner. 
 
 A partner, or member of an unincorporated company, 
 can not be sued on a contract made before he joined the 
 firm or company, since he was not one of the persons by 
 whom the contract was made. If, indeed, Z. joins the 
 firm of X. and Y., it may sometimes be the result of 
 transactions between the firm and its creditors that the 
 latter are to look for payment of their debts, not to the 
 old firm, X. and Y., by whom they were contracted, but 
 to the new firm, X., Y., and Z. But in this case, 
 Z. is, in effect, liable, not on the original contract [271] 
 made before he joined the firm, but on a new con- 
 tract made by him and his partners. 
 
 A retired partner, or member of an unincorporated 
 company, may be sued on any contract made whilst he 
 was a partner of the firm, or member of the company. 
 If, that is to say, a contract is made by the firm of X., Y.. 
 and Z., Z., though he retires from the firm, remains liable 
 on his contract, {q) 
 
 Exception. — One partner must or may be sued alone on 
 contracts made by him on behalf of the firm, in the same cases 
 
 {o) Dickinson v. Valpy, lO B. & C. 140, per Parke, J. ; and compare Shott 
 V. Stieatfield. i M. & Rob. 9; Alderson v. Popes, I Camp. 404. 
 
 (q) A partner's liability may continue to exist after he has actually retired 
 from the firm, if notice has not been given of his retirement. (Newsome v 
 Coles, 3 Camp. 621.) Publication in the Gazette is a sulTicient notice to all 
 who have not had dealings with the partnership before the change, but partners 
 remain liable for the acts of one another to all persons wlio have had dealings 
 with the firm, until such persons receive particular notice of the dissolution of 
 partnersliip. (Karrer v. Defllime, i C. & K. 5S0.)
 
 290 PARTIES, TO A (.2 IONS. 
 
 in which an agent must or may be sued on contract', ^ aJc by 
 him on behalf of his principal. (/) 
 
 EacK partner is an agent of his co-partners within the 
 scope of the partnership business. Hence he must be 
 sued alone on contracts made by the firm (his principals) 
 in cases in which an action must be brought against an 
 agent, e. g., when he has contracted by deed in his own 
 name ; {s) and he may be sued alone in the cases in which 
 an agent may be sued, instead of his principal, e. g., when 
 he has contracted (not under deed) on behalf of the firm, 
 but in his own name. (/) ' 
 
 Set-off. — Debts due to one partner, X., can not be set- 
 off" against debts due from the firm, X., Y., and Z. ; 
 [272] nor can debts due to the firm, X., Y., and Z., be 
 set-off against debts due from one partner, X. iii) 
 
 This principle is subject to the following exception : 
 
 Where one partner is or has become {e. g., by the death 
 of his co-partners) the only person who can be sued for a 
 debt due from the firm, he may set-off a debt due to him 
 self individually ; {v) and it would seem that he can, in 
 
 (r) See ante. 
 
 {s) Rule 53, Exception i. See, furlher, Eastwood v. Bain, 5 H. & N. 738 ; 
 28 L. J. 74, Ex. ; Bottomley v. Nuttall, 5 C. B., N. S., 122 ; 2S L. J. no, C. 
 P. ; Byles on Bills, 8th ed., 34 ; i Lindley, Partnership, 2nd ed., 244. In one 
 exceptional case partners may he liable on a bill to which they are not parties. 
 This is where a bill is drawn upon a firm, and accepted by one partner in his 
 own name only. 
 
 (/) Rule 53, Exception 5. 
 
 (m) See anU. 
 
 {v) Fletcher v. Dyche, 2 T. R. 52. 
 
 I. If the credit was given to one Tomlinson, i Day, 148; Snead v. 
 
 partner alone, he alone is responsi- Barranger, i Stew. 134. 
 
 ble. Lafon v. Chinn, 6 B. Mon. It is a question for the jury as to 
 
 305 ; Sylvester v. Smith, 9 Mass. whom the credit was given. Web- 
 
 121 ; Holmes v. Burton, 9 Vt. 252 ; ster v. Stearns, 44 N. H. 498. And 
 
 Ketchum v. Durkee, i Hoff. Ch. where the credit is given, each of 
 
 528; Watt V. Kirby, 15 111. 200; the partners, before they form the 
 
 Meyer v. Larkin, 3 Cal. 403 ; John- partnership, the goods bought being 
 
 ston V. Warden, 3 Watts, loi. But put in to make up the stock of the 
 
 such credit must be knowingly firm, the firm is not liable on the 
 
 and willingly given. Reynolds v. joint notes of the partners given 
 
 Cleaveland, 4 Cow. 282 ; Mead v. therefor. Wall v. Fife, 37 Fa. St. 394,
 
 PARTNERS AXD COMPANIES. 291 
 
 the like case, in an action for a debt due from him indi- 
 vidually, set-oflf a debt due to him as representing the 
 firm, e. g., as sui"V'iving partner, {x) 
 
 An action for a debt due from a firm is sometimes, in 
 order to avoid a set-off, brought against one of several 
 partners only. His remedy is to plead the non-joinder 
 of his co-partners in abatement. But if X., tne partner 
 sued, is for anv reason unable to plead the non-joinder of 
 his co-partners, Y. and Z., he can not, it would seem, take 
 any advantage in the way of set-off of debts due from the 
 plaintiff to the firm, X., Y., and Z. (7) 
 
 Rule 57. — Actions on contracts made by a firm; 
 
 1. Can not on the bankruptcy of the firm be 
 brought either against the trustee or (as a general 
 rule) against the individual partners. 
 
 2. Must on the bankruptcy of one or more part- 
 ners be brought against the solvent partner or part- 
 ners. {£) 
 
 There is no remedy by action against a trustee 
 in respect of the bankrupt whom he represents, {a) [273J 
 The remedv is by proof against the bankrupt's 
 estate, or by an action against him if his order of discharge 
 is no bar to tlie claim. When, therefore, it is desired to 
 recover a debt or damages for breach of contract, due 
 from a firm (jf which all the partners are bankrupt, an 
 action is not the remedy, unless the partners have not ob- 
 tained their discharge, or unless the claim is one which 
 can not be proved in bankruptcy, {p) 
 
 (x) Sec Slipper v. Sidstone, 5 T. R. 493 ; Golding v. Vaughan, 2 Chit. 
 436. 
 
 (_)') Stackwood v. Dunn, 3 Q. B. 823 ; i Lindley, Partnership, 2nd ed., 
 520. 
 
 («) I Lindley, I'artncr.-.liip, 2Md ed., 4<)4. Contrast with tliJs, Rule 23. Sec 
 Chapter XVI L 
 
 (a) I Lindley, Partnership, 2nd ed., 495. 
 
 (b) See Cl)ai)ter XVFI., as to the claims which are proveable, and which 
 herefore are barred liy bankniptcy, and Bankruptuy Act, 1869, s. 48.
 
 29; PARTIES TO ACTIONS. 
 
 If, however, one or more only of the partners are 
 bankrupt the solvent partner may be sued, {c) and they 
 may and should be sued alone if the bankrupt partners 
 are discharged from the claim, and lointly with them if 
 they are not. {d) Thus, if the firm of X., Y , and Z. are 
 bankrupt, no action can be brought against their trustee, 
 nor, if X., Y., and Z. have obtained their order of dis- 
 charge, and the claim be one that is proveable, {e) can 
 an}' action be brought against them. But if X., Y., and Z. 
 have not obtained their discharge, or if the claim be not 
 one to which bankruptcy is a bar, they are liable to be 
 sued. 
 
 Suppose, again, that X. be made a bankrupt, Y. and Z. 
 are still liable to be sued. If X. is discharged from the 
 debt, Y. and Z. must be sued without him, and if he is 
 not they must be sued jointly with him. (/) 
 
 Unincorporated companies — Winding up. — The general 
 rule can not be applied without modification to unincor- 
 porated companies. The affairs of such companies, when 
 insolvent, are generally settled by the company being 
 
 wound up. (^) 
 [274] On a petition for winding-up being presented, 
 
 actions against such companies can be stayed, and 
 after the order for winding up, can not be brought with- 
 out leave of the court. {Ji) 
 
 When an unincorporated company is registered, those 
 persons only become members of the incorporated com- 
 pany who are members of the unincorporated company at 
 the time of registration ; consequently the liabilities of 
 persons who were once members of the unincorporated 
 company, but had ceased to be so before the time of its 
 registration, are unaffected by the incorporation of the 
 
 (f) Hawkins v. Ramsbottom, 6 Taunt. 178. 
 
 {d) Uovill V. Wood, 2 M. & S. 23 ; Moravia v. Glasse, Ibid., 444 ; 3 & 4 
 Will. IV. c 42, s. 9 ; Bankruptcy Act i86q, s. 50. 
 
 {e) Chapter XVII. ./^j/. 
 
 (/) I Lindley, Partnership, 2nd ed., 694 ; Bullen, Pleadings, 3rd ed., 505 
 506, n. (a). See as to set-cff in bankruptcy, ante. 
 
 {g) See I Lindley, Partnership, 2nd ed., 166 ; 2 Ibid., 1219, 1258, 1259. 
 
 {h) iyte post
 
 PARTNERS AND COMPANIES. 293 
 
 company, and can, therefore, supposing the comj. any to 
 be registered and then Avound up, be enforced at law just 
 as if the company had never been registered or ordered 
 to be wound up. {i) 
 
 Companies empowered to sue, &•€. — The fact that a com- 
 pany has stopped payment does not prevent its suing 
 and being sued by its public officer, {k) and the bankruptcy 
 of a pubhc officer does not prevent his being sued as 
 such, that is, the plea of the bankruptcy of a person sued 
 as a public officer, will not be allowed to stand if the 
 plaintiff will give an undertaking not to issue execution 
 against the property of the defendant himself. (/) 
 
 Rule 58. — On the deatH of a partner, the sur- 
 viving partners, and ultimately the last survivor or his 
 representative, must be sued on contracts made with 
 the firm, {m) 
 
 X., Y., and Z. are partners; Z. dies; an action 
 on any contract made by the firm, i. e., by X., Y., [275] 
 and Z,, must be brought against X. and Y. The 
 same rule appears to hold good with regard to unincor- 
 porated companies, supposing they are not empowered to 
 sue by pubHc officer, {ri) 
 
 (i) I Lindley. Partnersliip, 2nd ed.. 1259; Lanyon v. Smith, 3 B. & S. 938 , 
 32 L. J. 212, Q. B. 
 
 {k) Davidson v. Cooper, 11 M. & W. 77S. 
 
 (/) Steward v. Dunn, ii M. & W. 63 ; Wood v. Marston, 7 D. P. C. 865 j 
 [ I indley, Partnership, 2nd ed., 501, 503. 
 (ni) Compare Rule 24. 
 («) See Rule 52.
 
 294 PARTIES TO ACTIONS. 
 
 CHAPTER XIV. 
 
 CORPORATIONS AND INCORPORATED BODIES. 
 
 Rule 59. — A corporation or incorporated body 
 must be sued in its corporate name.* 
 
 A corporation or incorporated body must be sued in 
 its corporate name, for the same reason for which it must 
 sue in its corporate name, viz., that a corporation is a 
 body distinct from the members who compose it. {a) It 
 does not, however, follow from this fact, that the members 
 of a corporation, or shareholders in a company, may not 
 be to a greater or less degree liable to satisfy with their 
 own property the obligations of the corporate body to 
 which they belong. The members, it is true, of a regular 
 corporation, e. g., the mayor and aldermen of a borough, 
 are not personally liable for the debts or obligations of 
 the borough ; and persons who contract with such a cor- 
 poration must look to its corporate funds exclusively. 
 But the members of a company are, as a general rule, to 
 a greater or less degree liable in their individual capaci- 
 ties for the obligations, {e. g., contracts) incurred by the 
 company, {b) " 
 
 (a) See Rule 25. 
 
 {d) The liability, for example, of a shareholder in a company, under 7 Will. 
 IV. & I Vict. c. 73, or in a company empowered by statute to sue, &c., depends 
 upon the terms of the charter, letters patent or statute, under whicli the partic- 
 alar company is constituted. The liability of members, again, of companies 
 within the Companies' Clauses Consolidation Act (8 & 9 Vict. c. 16, s. 36), 
 extends to the amount of their unpaid-up shares. Shareholders in banking 
 companies, within 7 Geo. IV., c. 46, are liable to the full extent of their individ- 
 ual property; whilst partners in companies within tiie Companies Act, 1862, 
 incur a limited or an unlimited liability, according to the terms on which the 
 company is registered. See I Lindley, Partnership, 2iid ed., 3S8, 389. 
 
 I. Curtis V. Murry, 26 Gal. 634; Newland, 2 Dev. & B. 364. 
 Winona, &c., R. Co. v. St. Paul, &c., 2. And a creditor's bill to enforce 
 R. Co., 23 Minn. 360; lirittain v. any liability of officers or stock-
 
 INCORPORA TED BODIES. 295 
 
 In one case a member of a corporate body is [277] 
 liable to be directly sued at law for the debts of the 
 corporation. This case arises under the Companies' Act, 
 1862, s. 48: — 
 
 " If any company under this act carries on business 
 when the number of its members is less than seven, for a 
 period of six months after the number has been so reduced, 
 every person who is a member of such company during 
 the time that it so carries on business after such period 
 of six months, and is cognizant of the fact that it is so 
 carrying on business with fewer than seven members, shall 
 be severally liable for the payment ot the whole debts of 
 the company contracted during such time, and may be 
 sued for the same, without the joinder in the action or suit 
 of any other member." 
 
 In order to make a person individually liable under 
 this section, it is necessary that, first, the company should 
 carry on business with less than seven members for a 
 period of six months ; secondly, the person made liable 
 should be a member during the time that the business is 
 so carried on ; and thirdly, he should be cognizant of the 
 business being so carried on. 
 
 Rule 60. — A corporation or incorporated body 
 can not be sued on a contract not under seal, {c) 
 
 {c) See Rule 26. 
 
 holders should be against the cor- their liability on their subscriptions 
 
 poration. I'ope v. Leonard, 115 to the capital stock. Vick v. Lane, 
 
 Mass. 287; Perkins v. Sanders, 56 56 Miss. 684; Umsted v. Buskirk, 
 
 Miss. 736; Umsted v. Buskirk, 17 17 Ohio St. 116; Branch v. Baker, 
 
 Ohio St. ii6-; and be brought on 53 Ga. 511 ; Smith v. Huckabee, 53 
 
 behalf of plaintiff, and all other Ala 193; their liability to creditors 
 
 creditors and all the stockholders is that of principal debtors, not of 
 
 may be joined defendants. Pope sureties Sonoma Valley Bank v, 
 
 V. Leonard, 115 Mass. 287; Me- Hill, 13 Reporter. 68; Gilbert v. 
 
 chanics' Bank v. Chandler. 19 Coal Co.. 62 Ind. 522; Salt Lake 
 
 Wis. 437. All solvent stockholders City Nat. Bank v. Hendrickson, 40 
 
 should be joined, if they are not too N. J. L. 54. 
 numerous, in an attempt to reach
 
 296 PARTIES TO ACTIONS. 
 
 Exception I. — Where a corporation contracts concerning 
 matters necessarilv incidental to the purposes or business of 
 the corporation. (</) 
 
 Exception 2. — Where the contract relates to matters of trivial 
 importance, or of constant recurrence. (<?) 
 
 [278] Exception 3. — In some cases of an implied con- 
 
 tract. (/) 
 
 A corporation may in some instances sue on a contract 
 implied by law, though no agreement under seal exists as 
 a basis of the action. Thus a corporation may apparently 
 be sued for use and occupation, (^) for money had and 
 received, by a person from whom lees have been wrong- 
 fully exacted by the corporation, (//) and for money paid 
 to its use, by a person who has been compelled to pay 
 money which ought to have been paid by the corpora- 
 tion, [i) 
 
 Exception 4. — Where a corporation is authorized by statute 
 to contract otherwise than under seal, (y) 
 
 Rule 6i — A corporation or incorporated body 
 can not be sued on contracts ultra vires.^ 
 
 {(i) Ibid., Exception i. 
 
 {e) Ibid., Exception 2. It should be noticed that as regards actions 
 against corporations there is no exception corresponding to Rule 26, Excep- 
 tion 3. 
 
 (y) Rule 2f), Exception 4 
 
 (^) Finlay v. Bristol and Exeter Rail. Co., 7 Ex. 409 ; 21 L. J. 1 17, Ex. ; 
 Low V. London and North- Western Rail. Co., 18 Q. B. 632 ; 21 L. J. 361, 
 Q. B. 
 
 {h) Hall V. Mayor of Swansea, 5 Q. B 526; 12 L. J. 107, Q. B. Rule 26, 
 Exception 5. 
 
 [i) J'-fferys v. Gurr, 2 B. & Ad. 833. 
 
 {j) Rule 26, Exception 5. 
 
 I. A corporation acts by its offi- Ry., 36 N. H. 17 ; Chase v. Am. 
 
 cers, agents and servants, and Steamboat Co., 10 R. I. 86; Kain 
 
 when they act within the scope of v. Smith, 40 N. Y. 467 ; Kline v. 
 
 their employment, it is the act of Central Pac. Ry. Co., 37 Cal. 403; 
 
 the corporation. Smith v Poor, 40 Gould v. District, 7 Minn. 200 ; 
 
 Me. 421 ; Hopkins v. Atlantic, &c., Selma, &;c., R. Co. v. Webb, 49
 
 IN CORPORA TED BODIES. 297 
 
 Corporations derive all their powers from the charter, 
 statute, &c., by which they are constituted ; and can, 
 therefore, have no greater capacity either to contract or 
 to do any other act than is given them by their constitu- 
 tion. Any contract, therefore, entered into by or on behalf 
 of a body corporate which is ultra vires, i. e., beyond the 
 powers of the body, or, in other words, is an agreement 
 which the corporation is not authorized by its constitution 
 to make, must of necessity be invalid. This doctrine has 
 no connection with the law of agency or the rights of 
 individual partners. It, indeed, exactly illustrates the 
 difference between a partnership or unincorporated com- 
 pany and a corporate body. If all the partners 
 in an ordinary firm, or all the shareholders in an [279] 
 unincorporated company, were to agree to enter into 
 a contract which had nothing to do with their original 
 agreement of partnership with one another, they could if 
 they pleased enter into such a contract, and it would, 
 provided they were acting unanimously, be binding upon 
 them. But the shareholders of a company incorporated 
 by charter or statute can not, even though acting unani- 
 mously, do anything contrary to the charter or statute to 
 which they owe their incorporation, [k) Nor, again, has 
 the objection to the validity of a contract, that it is ultra 
 
 (k) I Lindley, Partnership, 2nd ed., 256, 257; Society of Practical Knowl- 
 edge V. Abbott, 2 Beav. 559; Bagshaw v. Eastern Union Rail. Co., 19 L. J 
 410, Ch. ; 7 Ha. 114. 
 
 Ala. 241; Shakers v. Underwood, the extent of their corporate powers. 
 
 9 Bush. 614. But the corporation Pearce v. Madison, &c., R. Co., 21 
 
 is not liable for an injury commit- How. 441; Brady v. Mayor, 2 
 
 ted by an employee acting without Bosw. 73; S. C, 20 N. Y. 312; 
 
 the course of his employment wil- though in case of negotiable paper 
 
 fully and maliciously. Brokaw v. notice of the defence of ultra vires 
 
 R. Co., 32 N. J. L. 331 ; New Or- must be brought home to the 
 
 leans. &c., R. Co. v. Harrison, 48 holder. Police Jury v. Britton, 15 
 
 Miss. 113; Miller v. R. Co., 8 Neb. Wall. 566; Lexington v. Butler, 14 
 
 223; otherwise, if acting within the Wall. 282; Monument Bank v. 
 
 scope of their employment. Bro- Glove Works, loi Mass. 57 ; At- 
 
 kaw V, R. Co., 32 N. J. L. 331 torncy-General v. Ins. Co., 9 Paige, 
 
 Parties dealing with corporations 470; Mechanics', &c., Association 
 
 will be presumed to have known v. White Lead Co., 35 N. Y. 505.
 
 2gB PARTIES TO ACTIONS. 
 
 vires, anvthinjT to do with the form in which the agree- 
 ment IS made. A contract under seal and made with 
 every formality is nevertheless invalid, if it be a contract 
 bevond the powers of the corporation by or on behalf of 
 which it is made. " Corporations, which are creations of 
 law. arc, when the seal is properly affixed, bound just as 
 individuals are by their own contracts, and as much as all 
 the members of a partnership would be by a contract in 
 which all concurred. But where a corporation is created 
 by an Act of Parliament for particular purposes with 
 special powers, then, indeed, another question arises. 
 Their deed, though under their corporate seal, and that 
 regularly affixed, does not bind them, if it appear by the 
 express provisions of the statute creating the corporation, 
 or by necessary or reasonable inference from its enact- 
 ments, that the deed was ultra vires, that is, that the 
 legislature meant that such a deed should not be made." (/) 
 The ultra vires doctrine has been mainly applied to 
 contracts entered into by railway companies. An abso- 
 lute covenant, for example, by such a company to 
 [280] pay a certain sum of money to a landowner in the 
 event of an act passing, either before taking his 
 land, in) or within three months after the act should pass, 
 {0) has been held ultra vires, and therefore not binding on 
 the company ; so has been held a contract by a company 
 incorporated for the purpose of making and maintaining 
 a railway, to lease the plaintiff's railway, and to pay the 
 costs of soliciting bills. (/) 
 
 A distinction must be drawn between contracts which 
 ire. strictly speaking, ultra vires, i. e., beyond the powers 
 of a company, and contracts which are within its powers, 
 but irregular, i. e., made in an irregular way. Contracts 
 
 (/) South Yorkshire Rail. Co. v. Great Northern Rail. Co., 9 Exch. 55. 84 ; 
 22 L. J. 305, 313, Ex., per Parke, B. See Taylor v. Chichester and Midhurst 
 Rail. Co., L. R. 2, Ex. 356 ; 36 L. J. 201, Ex. (Ex. Ch.), esp. judgment ot 
 Blackburn, J. ; L. R. 2. Ex. 375-3S9- 
 
 (n) Gage v. Newmarket Rail. Co., 18 Q. B. 457 ; 21 L. J. 398. Q- B. 
 
 (<?) Taylor v. Chichester and Midhurst Rail. Co., L. R. 2, Ex. 356 ; 36 L. J. 
 201, Ex. 
 
 (p) East Ang'ian Rail. Co. v. Eastern Counties Rail. Co., 11 C. B. 775 ' 21 
 
 L. J. 23, C. P.
 
 INCORPORATED BODIES. 299 
 
 of the former class manifestly do not bind the company, 
 however regularly made. Contracts of the latter class, 
 when made by the directors of a compan}-, though with- 
 out the prescribed formalities in making them having 
 been observed, bind the company as regards all persons 
 dealing with their directors bona fide, and without notice 
 of the irregularity committed in making the contracts, (r)' 
 
 Rule 62. — When a company is in course of 
 winding up, actions against the company can either 
 be stayed, 01 can not be brought without leave of the 
 Court, {s) 
 
 Companies can POt be made bankrupt. They are 
 wound up under the provisions of the Companies' Act, 
 1862. 
 
 After a petition has been presented to wind up [28 (] 
 a company, any action against the company may be 
 stayed on the application of the company or any creditor 
 or contributory of the company, {f) Application to stay 
 the proceedings may, it seems, be made either to the 
 
 (r) I Lindley, Partner'^hip, 2nd ed., 255, 256. 
 
 (j) This rule applies, it sliould be remarked, to incorporated bodies. It 
 does not, however. *pj^Jy to ordinary corporations, e. f., the corporation of a 
 borough, &c. 
 
 (/) Coi panie» ^^. 1862, ss. 85, 197 ; 2 Lindley Partnership, 2nd ed„ 
 1255.
 
 300 PARTIES TO ACTIONS. 
 
 court in which the action is brought, {u) or to the court m 
 which the company is being woundup, i. e., in most cases 
 the court of chancery. 
 
 When a company is not formed and registered under 
 the Companies' Act, 1862, it is possible that the creditors 
 of the company may be able to proceed against the indi- 
 vidual members. Accordingly, the Act of 1862 contains 
 provisions enabling the court to stay proceedings against 
 individual members, on the application of a creditor of 
 the company. Only a creditor, however, is entitled to 
 stay such proceedings, {x) 
 
 After the order to wind up a company is made, no 
 action can be brought against the company without the 
 leave of the court, {y) 
 
 A company may be wound up either by the court, or 
 subject to the supervision of the court, or purely volun- 
 tarily. When the winding up is purely voluntary, it 
 does not per se prevent a creditor of the company from 
 bringing an action against it. It is not, therefore, in any 
 case necessary for him to apply for leave to bring an 
 action ; but the court {z) has jurisdiction to restrain 
 
 him. 
 [282] The result, therefore, of the winding up of a com- 
 pany is, either to expose any person who brings an 
 action against it, to have his action stayed, or else (sup- 
 posing a winding-up order to have been made) to compel 
 him to obtain leave to bring his action. 
 
 (m) 2 Lindley, Partnership, 2nd ed., 1255 ; Lanyon v. Smith, 3 B. & S. 938 . 
 32 L. J. 212, Q. B. Compai-e Thomas v. Wells, i6 C. B., N. S., 508 ; 33 L. J. 
 211, C. P. ; Gray v. Raper, L. R. r, C. P. 694. 
 
 U) 2 Lindley, Partnership, 2nd ed., 1258; Companies' Act, 1862, ss. 197, 
 198, 201, 202. 
 
 (y) Companies' Act, 1862, s. 87 ; 2 Lindley, Partnership, 2nd ed., 1255. 
 
 (2) /. e.. The Court of Chancery, or the court in which the action is brought. 
 3 Lindley, Partnership, 2nd ed., 1255.
 
 INFANTS. 30 » 
 
 CHAPTER XV. 
 
 INFANTS. 
 
 Rule 63.— An infant {a) can not be sued on any 
 contract made by him. 
 
 It being the privilege of an infant not to be bound by 
 his contracts, he can not be sued in an action ex contractu, 
 e. g., for a breach of promise of marriage, for non-dehvery 
 of goods, or for the non-performance of the conditions of 
 a bond. Nor is it possible to make an infant liable for 
 what is in reality a breach of contract, by bringing the 
 action in the form of an action for tort, {b) but it is said 
 that an infant can be sued for money received, where the 
 real cause of action is a tort, e. g., conversion of goods. 
 " As in the cases of contract, where the law has pro- 
 tected the infant against his liability, he can not be preju- 
 diced by the form of action in which he is sued ; so in 
 the cases ex delicto, where he is responsible, {c) he can not 
 derive any advantage from it. In Bristow v. Eastman, 
 id) Lord Kenyon, C. J., was of opinion that money had 
 and received would lie against the defendant, to recover 
 money which he had embezzled, notwithstanding the in- 
 fancy of the defendant, on the ground that infants 
 were liable to actions ex delicto, though not ex [284] 
 contractu ; and though the action for money had 
 and received was in form an action ex contractu, yet ni 
 
 (a) I. e., a person under twenty-one years of ag.-. An infant has the same 
 right to bring an action as any other person. An infant can sue on a contract 
 [e.g., a promise of marriage) by which he is not bound, and on which, therefore, 
 he can not be sued (Bac. Ab.. Infancy. I. 4 ; Davis v. Mornington. 2 Sid. tog ; 
 Holt V. Ward, 2 Str. q37 ; Warwick v. Bruce, 2 M. & S. 205). 
 
 (p) See ante, and Chapter XXIX. 
 
 (<:) In detinue, for instance. Mills v. Graham, i N. R. 14° 
 
 (d) I Eip. 172.
 
 302 PARTIES TO ACTIONS. 
 
 this case it was in substance an action ex delicto ; that if 
 trover had been brought for the property embezzled, in- 
 fancy would not have been a defense ; and as the object 
 of the action for money had and received was the same, 
 he thought the same rule of law ought to apply, and, 
 therefore, that infancy ought not to be a bar." {e) 
 
 This view of the law, though approved by good 
 authorities, (/) is (it is submitted) open to doubt. A 
 plaintiff who sues for money received chooses, for his 
 own convenience, to treat the cause of action, whatever 
 its real nature, as a breach of contract, and " if the party 
 chooses to bring an action for money had and received, 
 he subjects himself to all the consequences of the defen- 
 dant's being let in to plead a set-off, infancy, and the like." 
 {g) The rule, therefore, appears to be that an infant can 
 not be made liable in an action, either in reality or in 
 form ex contractu. 
 
 Exception i. — Contracts for " necessaries." (//) 
 
 Though, " strictly speaking, all contracts made by in- 
 fants are either void or voidable, because the contract is 
 the act of the understanding, which, during their state of 
 infancy, they are presumed to want, yet civil societies 
 have so far supplied that defect, and taken care of them, 
 as to allow them to contract for their benefit and advan- 
 tage, with power, in most cases, to recede from and 
 vacate it, when it may prove prejudicial to them ; and 
 where they contract for necessaries thej'' are absolutely 
 bound , and this, likewise, is in benignity to infants, for 
 if they were not allowed to bind themselves for necessa- 
 ries, no person would trust them, in which case 
 [285] they would be in worse circumstances than per- 
 sons of full age. 
 
 " Therefore it is clearly agreed by all the books that 
 
 (e) I Selwyn, N. P., 13th ed., 159. 
 
 (/) Chit., Contracts, 7th ed., 143; Leake, Contracts, 226. 
 {g) Altc-n V. Midland Rail. Co., 19 C. B., N. S., 241, per Wll.LES, J. 
 {h) Coke, Litt., 172 a.; Bac. Abr., Infancy, I i ; Ryder v. Wombwell, L. 
 R. 4, Ex. 33, judgment of Ex. Ch.
 
 INFANTS. 303 
 
 speak or this matter, that an infant may bind himseif to 
 pay for his necessary meat, drink, apparel, physic, and 
 such other necessaries ; and likewise for his good teaching 
 and instruction, whereb) he may profit himself after- 
 wards." (z) But the mere fact that an infant has a suffi- 
 cient income to obtain the articles he requires with ready 
 money, does not prevent his entering into contracts for 
 necessaries. (/) 
 
 What are " necessaries f — The word necessaries, as 
 applied to an infant, extends beyond the sense which is 
 given it in ordinary conversation. It not only includes 
 such articles as are necessary to the support of life, but 
 extends to articles fit to maintain the particular person in 
 the station and degree of life in which he is placed, {k) 
 
 The term necessaries is, in other words, purely relative 
 to the infant's position in life. For instance, a threepenny 
 ride in an omnibus may be a necessary for a clerk with a 
 salary of ;^i a week ; a carriage mav be a necessary for a 
 person in a different position ; an infant, again, orders an 
 expensive coat, but this may be a necessary if it appears 
 that his trade or calling is of that nature that such a coat 
 is necessary for his health, and so forth. (/) 
 
 From the relative character of the term, combined 
 with the tendency of juries to find an infant, if it be possi- 
 ble, liable on contracts of which he has received the 
 benefit, has arisen a considerable variety in the decisions 
 on the question as to what things are and what are not 
 necessaries. Thus, a livery for the servant of a captain in 
 the army, (;;z) regimentals for the member of a 
 volunteer corps, [n) horses for a person in a good [286] 
 position in life, {d) have been held necessaries. So, 
 necessaries for an infant's wife have been held necessaries 
 for an infant, (/) and an infant widow lias been considered 
 
 (/) I'ac. Abr., Infancy, I. r. 
 
 (>) lUirghart v. Hall, 4 M. & W. 727. 
 
 {k) Peters v. Flemin;:, 6 M. & W. 46. judgment of Parkk, H. 
 
 (l*i See KvfJer v. Womhwcll, L. R. 3, Ex. 90, judginenl of Hkamwf.i.l, B. 
 
 («) Hands v. Slaney. 8 T. R. 578. 
 
 (») Coate> V. Wilson 5 E^p. 152. 
 
 {p) Hart V. Pnter, i Jur. 623. 
 
 (/») Turner v. Trishy, 1 Str. 168 ; Rainsford v. Fenwick, Carter, 215.
 
 3C4 PARTIES TO ACTIONS. 
 
 bound by a contract for the expenses of her husband's 
 funeral, {q) So, a contract for necessaries for a man's law- 
 ful child is a contract for necessaries for himself; and "if 
 a man under the years of twenty-one contract for the 
 nursing of his lawful child, the contract is good, and shall 
 not be avoided by infancy, no more than if he had con- 
 tracted for his own aliment and education." {r) So the 
 cost of a marriage settlement for a woman under age, who 
 had no property of her own to settle, has been held {s) a 
 necessary for her. The foregoing, and other examples 
 which might be given, {/) show how wide an extension 
 has been given to the term necessaries, as meaning things 
 suitable to an infant's condition. On the other hand, 
 dinners and desserts have been held not to be necessaries 
 for an undergraduate at college, {ii) and cigars, {x) pres- 
 ents for friends, {y) subscriptions to benevolent objects, 
 {3) articles of mere ornament, such as diamond studs, {a) 
 have been considered not to come within the class of 
 necessaries. An infant, further, can not be charged on a 
 bill of exchange accepted by him, even for necessaries, {b) 
 
 nor on an account stated in respect of a debt due 
 [287] for necessaries, nor can an infant bind himself by 
 
 executing a cognovit, {c) or a bond, (d) for a debt 
 due for necessaries. 
 
 {q) Chappie v. Cooper, 13 M. & W. 252 ; 13 L. J. 286, Ex. 
 
 (r) Bacon, Law Maxims, 86 ; Chappie v. Cooper, 13 M. & W. 259, 260, 
 judgment of Ai.derson, B. 
 
 {s) Helps V. Clayton, 17 C. B., N. S., 553 ; 34 L. J. i, C. P., see esp. 34 L. 
 J. 7, C. P. ; judgment of the court. 
 
 (/) For further examples, see Chit., Contracts, 7th ed., 136-140 ; Leake, 
 Contracts, 232-234. 
 
 («) Brooker v. Scott, ri M. & W. 67. 
 
 {x) Bryant v. Richardson, cited in Ryder v. Wombwell, L. R. 3, Ex. 93. 
 
 iy) Ibid., 90. 
 
 (2) .See Chappie v. Cooper, 13 M. & W. 252 ; 13 L. J. 286, Ex. 
 
 {a) Ryder v. Wombwell, L. R. 4, Ex. 32 (Ex. Ch.) ; 38 L. J. 8, Ex. 
 
 {l>) Williamson v. Watts, i Camp. 552. 
 
 V) Truman v. Hurst, i T. R. 40. 
 
 (d) Oliver v. Woodroffe, 4 M. & W. 650; but conf Co.. Litt., 172 a; Baylis 
 T. Dinely, 3 M. & S. 477, 482 ; Marlow v. Pitfield, i P. Wm. 558
 
 INFANTS. 305 
 
 Two questions with regard to an infant's necessaries 
 have given rise to discussion, {e) 
 
 First Question. — Can articles be necessaries with which 
 an infant is fully supplied ? 
 
 Suppose A., a tradesman, to supply X., an infant, with 
 twenty loaves of bread, at a time when X. is already fully 
 supplied with bread ; will X. be hable for the price of the 
 twenty loaves as for the price of necessaries ? or, to put 
 the same inquiry in another form, can X., when sued by 
 A. for the price of the loaves give evidence that he was 
 already fully supplied with bread ? 
 
 The answer usually given, and supported by high 
 authority, is, that articles with which an infant is already 
 fully supplied are not necessaries for him ; and that, though 
 " an infant may contract a debt for necessaries, notwith- 
 standing he has a sufficient income to supply himself with 
 ready money, (/) and the party supplying necessaries to 
 an infant is not, as a general rule, bound to inquire into 
 his circumstances before giving credit to him, {g) yet the 
 fact (h) of the infant being properly provided with any 
 article is material with regard to the question of the 
 necessity of a farther supply of the same article." {i) 
 
 The correctness of this answer is doubtful. The court 
 of exchequer have held in a recent case {k) that evidence 
 could not be tendered to show that an infant was 
 already fully supplied with articles similar to those [288] 
 treated by the plaintiff as necessaries, unless at any 
 rate it could be shown that the fact of the infant being so 
 supplied was within the knowledge of the plaintiff when 
 he supplied the articles ; and the court of exchequer cham- 
 ber have, in the same case, treated the question under 
 discussion as one the answer to which is uncertain. (/) 
 
 {e) Leake, Contracts, 234. 
 (/) Hurtjhart v. Hall, 4 M. & W. 727. 
 {g) lirayshaw v. Eaton, 5 B. N. C. 231. 
 {k) B.iinbridge v. Pickering, 2 W. Bl. K325. 
 
 (i) Lcakc, Contracts, 233; Cliiity, Contracts, 7th cd., 136, 137, 140. See 
 Ryder v. Wombwell, L. R. 3, Ex. 97, judgment of Bkamwell, B. 
 (/fr) Ibid., L. R. 3, Ex. 90 ; 37 I-. J, 48. Hx. 
 (/) Ryder v. Wombwell, L. R. 4 E\. 42. 
 20
 
 3o6 PARTIHS TO ACTIONS. 
 
 " It becomes, therefore," the court say, " unnecessary 
 to decide whether the evidence tendered was properl}- 
 rejected or not. That is a question of some nicety, and 
 the authorities are bv no means uniform. In Bainbridge 
 V. Pickering {i?i) the Court of Common Pleas seem to have 
 acted on a principle which would make the evidence 
 admissible. In Brayshaw v. Eaton, {n) BOSANQUET, J., 
 treats it as clearly admissible, and on those authorities 
 the Court of Queen's Bench (then consisting of Black- 
 burn, J., and Mellor, J.) acted in Foster v. Redgrave. (<?) 
 There is much to be urged in support of the view taken 
 by the majority in the court below, and we desire not to 
 be understood as cither overruling or affirming that 
 decision. If ever the point again arises, the court before 
 which it comes must determine it on the balance of au- 
 thority and on principle without being fettered by a 
 decision of this court." (/) 
 
 Second Questioji. — Are there things which can not be 
 necessaries? 
 
 It has been maintained, on the one hand, {q) though (it 
 is conceived) erroneously, if) that the question whether a 
 gi\en article, e. g., a golden goblet given by a young gen- 
 tleman to one of his acquaintances, is, or is not, a necessary, 
 is a mere question of fact to be decided with reference to 
 the circumstances of the particular case, and that 
 [289] there are no articles which may not conceivably 
 fall under the head of necessaries. 
 
 It has been maintained, on the other hand, that there 
 are certain things w^hich are so obviously luxuries that 
 they can as a matter of law be pronounced not to be in 
 any case necessaries, or, in other words, that there are 
 articles of mere luxury which can never be necessaries, 
 though luxurious articles of utility sometimes may be so. 
 As examples of mere luxuries have been cited, ear-rings 
 
 (ni) I Wm. Bl. 1325. 
 
 («) 7 Scott, 183. 
 
 \o) Cited L. R. 4, Ex. 35 n. 
 
 (/>) Ryder v. Wombwell, L. R. 4, Ex. 42, per Curiam. 
 
 \q) Ibid., L. R. 3, Ex. 102. judgment of Kelly, C. B. 
 
 (r) Ibid., L. R. 4, Ex. 40 (Ex. Ch.).
 
 INFANTS. 307 
 
 for a man, spectacles for a blind person, a wild animal, 
 and so forth, {s) 
 
 A third view, which differs though but slightly, yet 
 materially, from the doctrine that there are some things 
 which can not be necessaries, and which is (it is sub- 
 mitted; correct, is as follows :— There are no articles of 
 which it can be pronounced as a matter of law that they 
 can under no circumstances be necessaries; but while 
 there are some articles {e. g., bread) which, prima facie, 
 are necessaries, there are other articles {e. g., cigars) 
 which, prima facie, are not necessaries. When a trades- 
 man sues an infant for the price of the latter, the burden 
 lies upon him of showing affirmatively that articles which 
 are, prima facie, not necessaries, are made necessaries by 
 the special circumstances of the case. If he does not 
 produce evidence to this effect, and evidence on which a 
 jury may reasonably act, he has not made out his case 
 and the judge should nonsuit him without submitting the 
 case to the jury, {t) 
 
 The result, therefore, of the law as to an infant's 
 necessaries may be seen from the following examples, in 
 which A. is a tradesman and X. an infant. 
 
 A. sells to X. bread, vegetables, &c. ; A. can recover 
 from X. the price of the goods on showing that he sup- 
 plied them to X. on X.'s order, though it is possible that 
 X. may defend himself by proving that he w^as 
 already fully supplied with bread, &c., and proba- [290] 
 ble that he may do so by showing that A. knew of 
 his being so supplied. 
 
 A. sells X. cigars. These are, prima facie, not neces- 
 saries ; A. therefore can not recover their price by simply 
 proving the sale to X. If this is all he can prove, he will 
 be nonsuited. But he may produce evidence that the 
 cigars were necessaries for X., e. g., that X. was ordered 
 by his physician to smoke cigars. On the production of 
 such evidence the case will go to the jury, and A. will 
 
 (j) Ryder v. Wombwell, L. R. 3. Ex. 96, judf^ment of Hramwkll. B. 
 (/) See. in supjKirt of this view, Ryder v. Womljwcll, L. R. A, Ex. 38-4< 
 udyn ent of Exchequer Chamber.
 
 3o8 
 
 PARTIES TO ACTIONS. 
 
 recover if they are satisfied that the cigars were, undei 
 the whole circumstances of the case, necessaries for X. ' 
 
 I. An infant is liable for money 
 paid for him for necessaries he had 
 purchased. Randall v. Sweet, i 
 Denio, 460; Swift v. Bennett, 10 
 Cush. 436; Conn v. Coburn, 7 N. 
 H. 36S; Haine v. Tarrant, 2 Hill 
 (S. C.) 400. His express promise 
 to pay for necessaries need not be 
 proved. Gay v. Ballou, 4 Wend. 
 403. But he is only liable for the 
 actual value thereof. Hyer v. 
 Hyatt, 3 Cranch C. C. 276; Com- 
 monwealth V. Huntz, 2 Pa. 3.'3; 
 Passenger R. Co. v. Stutler, 54 Pa. 
 St. 375 ; Bouchell v. Clary, 3 Brev. 
 194. When an infant is absent 
 from home, and not cared for by 
 his parents or guardian, he is re- 
 sponsible for necessaries. Angel v. 
 M'Lellan, 16 Mass. 28; Wailing 
 v. Toll, 9 Johns. 141 ; Kline v. 
 L'Amoureaux, 2 Paige, 419; Con- 
 nolly v. Hull, 3 McCord, 6; Jones 
 v. Colvin, I McMull. 14; Elrod v, 
 Myers, 2 Head, 33. A promise will 
 be implied on the part of an infant 
 without a protector, to pay for 
 necessaries furnished him. Hyman 
 V. Cam, 3 Jones, in ; but not for 
 an over supply of articles not in 
 themselves necessaries. Johnson 
 v. Lines, 6 Watts & S. 80. 
 
 And one cannot recover for neces- 
 saries beyond the infant's income, 
 when he has a guardian. Hussee 
 V. Roundtree, Busb. no. And if 
 he has an allowance from the court 
 or any source sufficient to supply 
 himself, he will not be liable for 
 necessaries furnished on credit. 
 Rivers v. Gregg, 5 Rich. Eq. 274. 
 
 The guardian is the sole judge oi 
 what are necessaries, and when ho 
 furnishes such as he thinks proper, 
 the infant will not be held liable for 
 more to a third person. Kraker v. 
 Byram, 13 Rich. 163. 
 
 An infant is bound for neces- 
 saries to carry on a business, whiclf 
 he does with his guardian's con- 
 sent. Rundel v. Keeler, 7 Watts 
 237 ; Watson v. Hensel, 7 Watts 
 344; Mohney v. Evans, 51 Pa. St 
 80. 
 
 An infant's promissory note foj 
 necessaries has no force as such. 
 McCrillis v. Hour, 3 N. H. 348; 
 Swasey v. Vanderheyden, 10 Johns, 
 33 ; Fenton v. White, 4 N. J. L. 
 100; Dubose V. Wheddon, 4 Mc- 
 Cord, 221 ; McMinn v. Richmond, 
 6 Yerg. 9 ; Beeler v. Young, i Bibb, 
 519 ; though the payee may sue on 
 the instrument and recover the 
 value of the necessaries without re- 
 gard to the amount of the face of 
 the note; Earle v. Reed, 10 Mete. 
 387 ; Haines v. Tennant, 2 Hill 
 (S. C.) 400; Stone v. Dennison, 13 
 Pick. I ; taking judgment for the 
 part of" the consideration which is 
 good as between adults ; Parish v. 
 Stone, 14 Pick. 198; Harrington v. 
 Stratton, 22 Pick. 516; Goodwin v. 
 Morse, 9 Mete. 278. 
 
 To bind an infant for necessaries 
 the credit must have been originally 
 given him. Varney v. Young, n 
 Vt. 258; Wailing v. Toll, 9 Johns. 
 131 ; Rundell v. Keeler, 7 Watts, 
 237 ; Smith v. Young 2 Dev. & Bat. 
 26 ; Rivers v. Gregg, 5 Rich. 274 ;
 
 INFANTS. 
 
 30s 
 
 Exception 2.— Contracts in respect of permanent property 
 occupied or possessed by an infant. 
 
 There seems to be authority for asserting, («) that 
 where an infant becomes possessed by means of a con- 
 tract of real estate, or other permanent property to which 
 certain obligations {e. g., the payment of rent) are attached, 
 he is liable to these obligations as long as he continues in 
 possession, and until he disagrees to or renounces the 
 estate or repudiates the possession of the property and 
 can be sued in respect of them. Thus where an infant 
 
 {tt) Leake, Contracts, 227, 22S. 
 
 Meholson v. Wilborn, 13 Ga. 467 ; 
 Simms v. Norris, 5 Ala. 42 ; Sink- 
 lear v. Emert, 18 111. 63. 
 
 A common school education is a 
 necessary. Raymond v. Loyle, 10 
 Barb 489 ; but not a college educa- 
 tion ; Middlebury College v. Chand- 
 ler, 16 Vt. 683. The services of an 
 attorney in defending a bastardy 
 proceeding have been held neces- 
 saries. Barker v. Hibbard, 54 N. 
 H. 539 ; and in prosecuting for a 
 seduction ; Munson v. Washband, 
 31 Conn. 303; and the services of 
 a dentist ; Strong v. Foote, 42 
 Conn. 203. The following authori- 
 ties will tend to illustrate the cases 
 that arise : Bradley v. Pratt, 23 
 Vt. 378; Thrall v. Wright, 38 Vt. 
 494; Phelps V. Worcester, 11 N. 
 H. 368; Tupper v. Cadwell, 12 
 Mete. 559; Merriam v. Cunning- 
 ham, II Cush. 40; Atcheson v. 
 Bruff, 50 Barb. 38 ; Freeman v. 
 Bridger, 4 Jones, i ; Glover v. Ott, 
 I McCord, 572 ; Ramwater v. Dur- 
 ham, 2 Nolt & McCord, 524; Grace 
 v. Hale, 2 Humph. 27: Bceler v. 
 Young, I Bibb, 519; Sams v. Stock- 
 ton, 14 B. Mon. 232 ; Perkins v. 
 
 Bailey, 6 La. Ann. 256. 
 
 The fundamental limitation of 
 necessaries is well stated by Fow- 
 ler, J., in Insurance Co. v. Noyes, 
 32 N. H. 368 : " It is evident from 
 the most cursory examination, that 
 the contract being advantageous or 
 disadvantageous to the infant or his 
 estate, furnishes no reliable test on 
 the point as to whether or not the 
 subject matter of such contract is 
 properly included within the term 
 ' necessaries.' * * * That neces- 
 saries concern the person and not 
 the estate, furnishes the true test on 
 this subject. Although there may 
 be isolated cases where a contrary 
 doctrine has obtained, we appre- 
 hend the true rule to be that those 
 things, and those only, are prop- 
 erly to be deemed necessaries 
 which pertain to the becoming and 
 suitable maintainance and support, 
 clothing, health, education and ap- 
 pearance of the infant, according to 
 his condition and rank in life, the 
 employment or pursuit in which he 
 is engaged and the circumstances 
 under which he may be placed as 
 to profession or position."
 
 310 PARTJnS TO ACTIONS. 
 
 was admitted to a copyhold estate, and retained possession 
 of it after coming of age, he was held liable for the hnes 
 due upon it, and an opinion was expressed by Yates, J., 
 that he would have been liable to an action even during 
 infancy. 
 
 " If the defendant was still an infant I should think 
 this action maintainable. Debt perhaps would not lie. 
 . . . But assumpsit, I think, would lie, as the infant 
 continued to occupy and enjoy the estate. In Kirton v. 
 Elliott, {v) the plaintiff recovered against an infant the 
 rent upon a lease made to him, and it is there said that if 
 a lease be made to an infant, and he occupies and enjoys, 
 he shall be charged with the rent." {x) So, " in- 
 [291] fants having become shareholders in railway com- 
 panies, have been held liable to pay calls made 
 whilst they were infants, {y) They have been treated, 
 therefore, as persons in a different situation from mere 
 contractors, for then they would have been exempt. But, 
 in truth, they are purchasers, who have acquired an in- 
 terest, not in a mere chattel, but in a subject of a perma- 
 nent nature, . . . and with certain obligations ;ft- 
 tached to it, which they were bound to discharge, and 
 have been thereby placed in a situation analogous to an 
 infant purchaser of real estate, who has taken possession, 
 and thereby becomes liable to all the obligations attached 
 to the estate, — for instance, to pay rent, (-sr) in the case of a 
 lease rendering rent, and to pay a fine due on the admis- 
 sion, in the case of a copyhold to which an infant has been 
 admitted, — unless they have elected to waive or disagree 
 to the purchase altogether, either during purchase or 
 after full age, at either of which times it is competent for 
 an infant to do so." {a) 
 
 Father not liable. — A father is, as such, under no legal 
 liability to pay for necessaries supplied to his child. 
 
 (v) 2 Bulst. 69. 
 
 ix) Evelyn v. Chichester, 3 Burr. 1711) judgment of Yates, J. 
 iy) Cork and Hnndon Rail. Co. v. Cazenove, ro Q. B. 935 ; Leeds and 
 Thirsk Rail Co. v. Fearnley, 4 Exch. 26 ; 18 L. J. 330, Ex. 
 (2) 21 Hen. VI., 31 B. 
 {a) North-Weslern Rail. Co. v. McMichael, 5 Exch. 123, 124, per CURIAM.
 
 INFANTS. 311 
 
 •* In point of law a father who gives no authority, and 
 enters into no contract, is no more liable for goods sup- 
 plied to his son than a brother or an uncle or a mere 
 stranger would be. From the moral obligation a parent 
 is under to provide for his children, a jury are not 
 unnaturally disposed to infer against him a liability, in 
 respect of claims upon his son, on grounds which warrant 
 no such inference in law." {b) The mere fact that the 
 goods supplied were necessaries, and were supplied with 
 the knowledge of the parent, is not of itself sufficient to 
 support an inference of a promise on the part of the 
 father to pay for them. In order to bind him in point of 
 law for a debt incurred by his child, it must be 
 proved that he has contracted to be bound, just in [292] 
 the same manner as a contract would be proved 
 against any other person, {c) A jury, however, will infer 
 that a father has promised on comparatively slight evi- 
 dence. 
 
 Rule 64. — An adult {i e., a person of or over 
 twenty-one years of age) can not be sued on con- 
 tracts made by him during infancy. 
 
 This rule applies without exception to contracts which 
 the court can pronounce to be to the infant's prejudice, 
 and therefore absolutely void ; (d) e. g., a bond conditioned 
 for the payment of interest, {e) or a bond with a penalty. (/) 
 All the exceptions to it are either contracts on which tiie 
 infant himself might be sued, or contracts which are not 
 void, but only voidable at the election of the infant on 
 coming of age. 
 
 (b) Mortimore v. Wri^iht, 6 M. & W. 486. judgment of Ahinger. C. B. 
 {c) Leake, Contracts, 27, 28 ; Mortimore v. Wright, 6 M. & W. 482. Com- 
 pare Bazeiey v. Forder, L. R. 3, Q. H. 559 I 37 L. J. 237, Q. B. 
 {d) Keane v. Boycott, 2 H. Bl. 511. 
 {e) 8 Eait, 330. 
 (/) Baylis v. Dineley, 3 M. & S. 47-.
 
 312 PARTIHS rO ACTIONS. 
 
 Exception i. — Contracts on which an infant might be sued 
 
 An adult can be sued on all the contracts made during 
 infancy (viz., contracts for necessaries) for which he 
 would have been liable while an infant, {g) 
 
 Exception 2. — Contracts ratified in writing after full age. 
 
 An adnlt may be sned on a contract made during in- 
 fancy {c. g., for the purchase of ^oods not necessaries), 
 if, after he comes of age, he confirms it by a new 
 [293] promise or ratification, (//) and this promise will be 
 binding without any fresh consideration for it. {i) 
 " The principle on which the law allows a party who has 
 attained his age of twenty-one 3^ears, to give validity to 
 contracts entered into during his infancy [is] that he is 
 supposed to have acquired the power of deciding for 
 himself whether the transaction in question is one of a 
 meritorious character by which in good conscience he 
 ought to be bound." (7 ) 
 
 The promise or ratification must be in writing, and 
 must, under 9 Geo. IV. c. 14, s. 5, be signed by the party 
 himself, {k) 
 
 It has been held that " any written instrument signed 
 by the party which, in the case of adults, would have 
 amounted to the adoption of the act of a party acting as 
 agent, will in the case of an infant who has attained his 
 majority, amount to a ratification ; " (/) and further, that 
 
 {g) An adult may be freed from liability for such contracts in consequence 
 of their being barred by the Statutes of Limitations ; e. g., if an infant contract 
 for necessaries at the age of twelve, the remedy against him will be barred be- 
 fore he has attained the age of twenty-one. 
 
 (//) Provided the contract be not originally absolutely void (Baylis v. Dine- 
 ley, 3 M. & S. 477), in which case it is, strictly speaking, not a contract. 
 
 (i) As to consideration, see a/t/e. 
 
 (/) Williams v. Moor, 11 M. & W. 256, 264, per CURIAM. 
 
 (k) 9 Geo. IV., c. 14, s. 5. "The Mercantile Law Amendment Act, 1856" 
 {19 & 20 Vict. c. 97), has not taken away the necessity of the ratification being 
 signed by the party himself. Leake, Contracts, 229. 
 
 (/; Harris v. Wall, i Exch. 122, I30,.per Curiam ; Rowe v. Hopwood, \- 
 R. 4. Q. B. I.
 
 INFANTS. 313 
 
 the ratification may be made upon a condition, or to a 
 limited extent. Thus if X. promise in a letter, signed by 
 himself, to pay a debt incurred during infancy, when he 
 is able, such new promise is binding upon him condition- 
 ally on his becoming able to pay. {m) 
 
 The confirmation or ratification of a contract made 
 during infancy must in all cases be before action 
 brought. («) 
 
 Exception 3. — Contracts connected with the possession of 
 permanent property and not repudiated after full age. 
 
 Where an infant not only contracts but also [294] 
 acquires an interest, not in a mere chattel, but in a 
 subject of a permanent nature, (^)he is liable to the obliga- 
 tion attached to the contract unless he repudiates the 
 contract within a reasonable time after he comes of age. 
 Thus if a lease be made to an infant during his minority, 
 he ratifies it by remaining in possession after he comes of 
 age, and, on what is really the same principle, if a lease is 
 made by an infant, he ratifies it by accepting rent after he 
 attains his majority ; {p) and an infant member of a firm 
 who does nothing to disaffirm the partnership upon com- 
 ing of age, has been held to continue a partner, and to be 
 liable on contracts subsequently made by the firm, (</) 
 though not for debts incurred by the firm during his minor- 
 ity, (r) Perhaps, however, he may be liable on contracts 
 entered mto before he reached the age of twenty-one, but 
 persisted in by the firm after that date, {s) An infant share- 
 holder, again, who after he comes of age permits his name 
 to continue registered, thereby ratifies the agreement by 
 
 (/;/) See Cole v. Saxby, 3 Esp. 160 ; and see generally, Leake, Contr.icls 
 229-251. 
 
 («) Thornton v. Illinj^wurth, 2 R. & C. 824. 
 
 \o) London and North- Western Rail. Co. v. McMichael, 20 L. J. 99 Ex. 
 « Exch. 123, jiuli^'mcnt of Pakke, B. 
 
 (/)) r.aylis V. Dineley, 3 M. & .S. 477, 481 ; 2 Steph. Com., 6th ed., 329. 
 
 (g) Goodc V. Harrison, 5 H. & Aid. 147. 
 
 (r) Lindley, Partnership, 2nd ed., 80-88. 
 
 (/) Ibid.
 
 314 PARTIES TO ACTIONS. 
 
 which he originally became a shareholder, {t) and there- 
 tore is liable for calls made as well before as after he came 
 of age. («) 
 
 Rule 65. — If one of several co-contractors is an 
 infant, and the others are adults, the adults alone 
 must be sued. 
 
 [295] If a joint contract is made by X., an infant, and Y., 
 an adult, an action for the breach of it may and should 
 be brought against Y. only. If an action be brought against 
 them jointly it must fail, for on X. pleading infancy, the 
 plaintiff can not enter a nolle prosequi as to him, and con- 
 tinue the action against Y. {x) but must discontinue the 
 action and sue Y. separately, {y) 
 
 But if Y. alone be sued, and he plead X.'s non-joinder 
 m abatement, the plaintiff may meet the plea by replying 
 X.'s infancy, {z) 
 
 (/) Ibid. 
 
 {tt) London and North-Western Rail. Co. v. McMichael, 5 Exch. 114; 20 
 L. J. 97, Ex. ; Cork and Bandon Rail. Co. v. Cazeiiove, 10 Q. B. 935 ; Dublin 
 and Wicklow Rail. Co. v. Black, 22 L. J. 94, Ex. ; 8 Exch. 181. (Ex. Ch.) 
 and contrast Newry and Inniskilling Rail. Co. v. Combe, 3 Exch. 565 ; 18 L 
 J. 325. Ex. 
 
 (jc) Boyle v. Webster, 21 L. J. 202, Q. B. ; 17 Q. B. 950. 
 
 {}•) Burgess v. Merrill, 4 Taunt. 468 ; Chit., Contracts, 7th ed., 143. 
 
 (z) Chit., Contracts, 7th ed., 143 ; Gibbs v. Merrill, 3 Taunt. 307.
 
 HUSBAND AND WIFE. 315 
 
 CHAPTER XVI. 
 
 HUSBAND AND WIFE. 
 
 Rule 66. — A wife can not during coverture be 
 sued alone, {a) 
 
 Exception i. — Where the husband is civilly dead. (^) 
 
 Exception 2. — Where the husband is legally presumed to be 
 dead, {c) 
 
 Exception 3. — Where a wife has a judicial separation or pro- 
 tection order under 20 & 21 Vict. c. 85, ss. 26 and 21. (d) 
 
 Exception 4. — Where the husband is an alien enemy. 
 
 A wife can not, as before pointed out, (<?) sue alone on 
 the ground that her husband is an alien enemy ; but she 
 may at any rate, under some circumstances, be sued alone 
 on the ground that her husband is an alien enemy. 
 
 Thus, where the husband is an alien who has deserted 
 this kingdom, leaving his wife to act here as a feme sole 
 she may, it would seem, be charged in an action against 
 her alone, on contracts made by her after such desertion 
 (/) though it is doubtful whether the doctrine that 
 the wife of an alien enemy can be sued alone must [297] 
 not be confined to cases in which the husband has 
 never been in this kingdom. { g) 
 
 (a) .See Rule 29 for explanation. 
 (b') See Rule 29, Exception I. 
 
 (f) See Rule 29, Exception 2. 
 (</) Ibid., Exception 3. 
 
 (e) See ante. 
 
 \f) I Selwyn, N. P., 131I1 ed., 240; Walfonl v. Duchesse de Pienne, 2 Esp. 
 554 ; Francks v. Duchesse de I'ienne, 2 Esp. N. P. C. 587. 
 
 (g) Put see Kay v. Duchesse de Pienne, 3 Cam]). 123, where I.oid El.l.KN- 
 BORfiijO'' confines the dcjctrine to the cane where I he husband has never been
 
 3i6 PARTJHS TO ACTIONS. 
 
 SUBORDINATE RULE. 
 
 A wife can not be sued by her husband. (A) 
 
 Rule 67. — A husband and wife must be fv^'d 
 jointly in two cases, sc, 
 
 1. On contracts made by the wife before mim- 
 riage. 
 
 2. On contracts on which a claim is made against 
 the wife as executrix or administratrix. {{) 
 
 The remarks as to the cases in which a husband and 
 wife must sue jointly, {J) apply, mutatis mutandis, to the 
 cases in which they must be sued jointly. 
 
 A woman does not, in consequence of her marriage, 
 cease to be liable on her contracts made before marriage. 
 She must, however, be sued on them jointly with her 
 husband. It should, however, be remarked that, as 
 regards her liability to be sued, bills of exchange stand 
 on the same footing as other contracts. Hence, though 
 a husband can sue alone on a bill of exchange given to 
 his wife before marriage, he can not be sued alone in 
 respect of a bill on which she has become liable before 
 marriage. It is, further, never the case that an action 
 can be brought at choice either against the husband alone, 
 or against the husband and wife jointl}^ In other words, 
 there are no cases, as regards actions against hus- 
 
 in this kingdom. See I Selwyn, N. P., 13th eil., 240. Compare Marsh v. 
 Hutchinson, 2 B. & P. 226; De Gaillon v. L'Aigle, i 13. & P. 354 ; Boggett v. 
 Friar, 11 East, 301 ; Marshall v. Rutton, 8 T. R. 545. But now it is provided 
 by the Married Woman's Property Act, 1870 (33 & 34 Vict. c. 93), sect. 12, that 
 " a husband shall not by reason of any marriage which shall take place after this 
 Act has come into operation, be liable for the debts of his wife contracted be- 
 fore marriage, but the wife shall be liable to be sued for, and any prof)erty 
 belonging to her for her separate use shall be liable to satisfy such debts, as if 
 she had continued unmarried." The effect seems to he, that a woman married 
 tfter the passing of the Act, 9th August, 1870, is liable to be sued for debts con- 
 tracted before marriage as if she were a feme sole. 
 
 {h) See ante. 
 
 (t) Compare Rule 30. 
 
 (/) See ante.
 
 HUSBAND AND WIFE. 317 
 
 oand and wife, corresponding to those in which an [298I 
 action ma}^ be brought either by the husband 
 alone, or by the husband and wife jointly. 
 
 An executrix is liable in that character although 
 married, but she must be sued together with her hus- 
 band, {k) 
 
 Effect of death.— T\\Q effect of death, as regards actions 
 on contracts made with the wife before marriage, is as 
 follows: (/) 
 
 If the husband dies before action brought, the right of 
 action, as a general rule, survives against the widow, {m) 
 She can not, however, be sued on contracts made with 
 her before marriage if her husband has become bankrupt 
 during her coverture, since the bankruptcy of the husband 
 discharges the wi% from liability on her contracts. [71) 
 
 If the wife dies before action, the right of action sur- 
 vives against her administrator. {0) 
 
 The same results seem to follow from the death of 
 either party, after action brought, but before judgment 
 recovered. If the wife dies afteraction brought, the action 
 abates; but the death of the husband is not material, 
 since plaintiff may, on suggesting such death upon the 
 record, proceed in the action against the wife. (/) 
 
 If the husband dies after judgment recovered, the lia- 
 bility on the judgment remains against the wife. If 
 the wife dies after judgment recovered, the husband [299J 
 remains liable on the judgment as for a debt of his 
 own. {q) 
 
 {k) BuUen, Pleadings, 3r(l ed., 156. 
 
 (/) The general principle to be borne in mind is, that a husband is not lia 
 ble for his wife's debts contracted before marriage, provided judgment be no' 
 recovered for them during coverture ; but that he is liable on judgments 
 obtained against him and his wife on account of contracts made by her before 
 marriage. Bacon. Abr., Baron and Feme. F. ; Woodman v. Chapman, i 
 Camp. 188; 2 Williams, Executors, 6th eel., 1633 ; Roper, Hub,band and Wife, 
 2nd ed., 75. 
 
 im) J5ullen, Pleadings. 3rd ed.. 171. 
 
 (w) Miichin.son v. liewGon, 7 T. R. 348.350; Woodman v. Chapman, 1 
 Camp. 189; Broom, Parties, 2nd ed., s. 223. 
 
 (<?) Bullen, Pleadings, 3rd ed., 171. 
 
 (/) Lush, Practice, 3rd ed., 102. 
 
 (q) 2 Roper, Husband and Wife, 2nd ed„ 105.
 
 3i8 PARTIES TO ACTIONS. 
 
 The cfTect of death as reganls actions on contracts on 
 wliich the wife is charo;ed as executrix, ike, is as follows: 
 on death of the husband the right of action survives 
 against the widow. On death of the wife, the right of 
 action survives against the representative of the testator 
 or intestate. 
 
 Effect of divorce. — Divorce releases a husband from 
 liability to be sued jointly with his former wife, on con- 
 tracts made by her before coverture, if) A husband is 
 (it is conceived) liable, even after divorce, on judgments 
 recovered against himself and his wife. 
 
 Set-off. — In an action against a husband and wife for 
 debts due from the Avife before marriage, debts due to 
 her before marriage can be set-off, and debts due to her 
 husband can not be set-off. It would seem that debts 
 due to the husband and wife can be set-off. 
 
 Rule 68. — In all actions brought to charge a 
 husband on contracts made by his v^ife during cover- 
 ture, the husband must be sued alone, {s) 
 
 A wife can not contract during coverture so as to 
 charge herself. (/) She contracts, if at all, as agent of her 
 husband. His liability depends upon the authority of his 
 wife to pledge his credit, which must be proved by the 
 
 plaintiff, iii) 
 [300] A utJiority of wife to bind Imsband. — The authority 
 
 of a wife to pledge her husband's credit depends 
 (with one exception) on the principles which govern the 
 relation of principal and agent, {x) The question to be 
 
 {>■) See Capel v. Powell, 34 L. J. 16S, C. P. ; 17 C. B., N. S., 743- This 
 case refers to torts committed by a wife during coverture ; tut the principle 
 of it seems to apply to contracts made by her before coverture. 
 
 {s) Leake, Contracts, 234 ; Manby v. Scott, 2 Smith, L. C, f)th ed., 396 • 
 France v. White, i NL & G. 731. 
 
 (t) Except, of course, in the cases enumerated as exceptions to Rule 65 ; 
 France v. White, i AL & G. 731. 
 
 (m) Bulltn, Pleadings, 3rd ed., 172; Manby v. Scott, 2 Smith, L. C, 6Ul 
 ed., 396, and fallowing. 
 
 (x) C'lapter XIL
 
 HUSBAND AND WIFE. 319 
 
 settled is, in all cases, whether the wife has the husband's 
 authority to make the contract on which the action is 
 brought. If she has express authority, or if her husband 
 has ratified {y) 2i contract made by her, no difficulty can 
 exist. Doubt can arise only when the authority relied 
 upon is implied authority, {z) 
 
 A man's wife, or a woman represented by him to be 
 his wife, is prima facie presumed to have authority to 
 make contracts such as a wife in her position of life 
 usually makes ; i. e., contracts for articles suitable to that 
 station which he permits her to assume, (a) The question 
 whether a wife has authority to make a particular con- 
 tract, e. g., to buy clothes, jewelry, &c., is a question of 
 fact for the jury, and thus, " where a plaintiff seeks tu 
 charge a husband on a contract made by his wife, the 
 question is, whether the wife had his authority express or 
 implied to make the contract ; ... if there be ex-' 
 press authority, thei-e is no room for doubt ; and if the 
 authority is to be implied, the presumptions which may 
 be advanced on one side may be rebutted on the other ; 
 and although there is a presumption that a woman living 
 with a man, and represented by him to be his wife, has 
 his authority to bind him by her contracts for articles 
 suitable to that station which he permits her to 
 assume, still the presumption is always liable to be [301] 
 rebutted." {h) This authority is so little connected 
 with the relation of husband and wife, that, " if a man 
 allow a woman to live with him, and pass for his wife, he 
 will be liable for necessaries furnished to her even by 
 one who was aware of the real nature of the cohabita- 
 tion." {c) 
 
 {)') Montngue v. Benedict, 3 B. & C. 631; 2SniitIi, I-. C, (i\\\ cd., 429 ; 
 .Seaton v. Benedict, 5 Bing. 28 ; 2 Smith, L. C, 61I1 ed., 13 ; Wailhman y. 
 Wakefield, i Camp. 120; Leake, Contracts, 246, 247. 
 
 (2) See Tolly v. Rees, 33 L. J. 179, C. P., judgment of EiU.K, C. J. 
 
 (a) Manby v. Scott, 2 Smith, L. C. 6th I'd., 441 ; Montague v. Benedict 
 Ibid,, 429; Jolly V. Rees, 33 L. J. 177, C. P.; 15 C. li., N. S., 62S ; Ether 
 ington V. Parrot, I Salk. iiS; 2 Smith, I.. C, 6th ed., 441, Watson v. 
 Threlkeld, 2 Esp. 637. 
 
 (/>) Jolly V. Rees, 33 L. J. 179, C. P., judgment of Erle, C. J. 
 
 i^c) 2 Smith, L. C, 6th ed., 441
 
 320 PARTIES TO ACTIONS. 
 
 It may be considered an open question, whether the 
 withdrawal of authority by a husband from his wife, with- 
 out the knowledge of the person dealing with her, frees 
 the husband from liability to such person. According to 
 the latest case on the subject, {d) such private withdrawal 
 of authority relieves the husband from responsibility. If 
 such be the law, a private revocation of authority has, it 
 would seem, in the case of a husband and wife, an effect 
 beyond that which it would have in the case of an ordi- 
 nary principal and agent, {e) 
 
 Where a wife lives apart from her husband, she has no 
 presumptive authority to bind her husband ; but in one 
 case (the exception before referred to) (/) she possesses 
 an authority to bind him, which appears to result from 
 the relation of the husband and wife. This case is that of 
 a married woman who, not having an adequate mainte- 
 nance, {g) lives apart from her husband, either with his 
 consent, (h) or under compulsion to separate from him on 
 account of his misconduct. Under these circumstances 
 she has an implied authority, which can not be rebutted 
 (or, in other words, a right), to bind her husband by con- 
 tracts for necessaries, {i) unless she is living in adul- 
 [302] tery. {k) A tradesman, or other person, who trusts 
 a wife living apart from her husband, can not treat 
 the husband as liable to pay for goods supplied for her 
 unless the circumstances of the case are such as to give 
 her a right to pledge her husband's credit. The trades- 
 man trusts her at his own risk, and if the circumstances 
 are not such as to give her authority (if, for example, she 
 is living in adultery, or receives an adequate allowance). 
 
 id) Jolly V. Ress, 33 L. J. 177, C. P. ; 15 C. B., N. S., 628. Compare 
 Ryan v, Nolan, Irish Rep., 3, C. P. 325, judgment of the court. 
 
 (e) See judgment of Byles, J., who dissented from the rest of the court in 
 Tolly V. Rees, 33 L. J. 181, C. P. 
 
 (/) See ante. 
 
 {g) Ozard v. Darnford, i Selwyn, N. P., 13th ed., 229. 
 
 [h) Mizen v. Pick, 3 M. & W. 481 ; Biffin v. Bignell, 31 L. J., 189, Ex., 7 
 H. & N. 877. 
 
 {i) Bullen, Pleadings, 3d ed., 172, 173. 
 
 (L-) Atkyns v. Pearce, 2 C. B., N. S., 763 ; 26 L. J. 252, C. P. Cooper v 
 Lloyd. 6 C. B., N. S., 519 ; Knox v. Bushell, 3 C. R., N. S., 334-
 
 HUSBAND AND WIFE. 321 
 
 then the husband is not bound, even though the creditor 
 did not know these facts. (/) 
 
 What are necessaries? — The articles which can be 
 treated as necessaries when supplied to a wife living apart 
 from her husband, must be not only suitable in themselves 
 to her position, but also indispensable, because not sup- 
 plied from other sources, and indispensable without the 
 fault or waste of the wife, {in) 
 
 The term has, however, been given a considerable 
 latitude of meaning. " Furniture for a house may be 
 necessary for a wife in a station of life requiring her to 
 live in a furnished house. (;z) Where it became necessary 
 for a wife to exhibit articles of the peace against her 
 husband, it was h«ld that he was liable for the costs of an 
 attorney employed by her on that occasion, {d) and that 
 an allowance made to her for maintenance could not be 
 considered as applicable to that purpose. (/) The costs 
 of a proctor {q) employed by a wife in prosecuting 
 a suit against her husband for a divorce on the [303] 
 ground of cruelty, may be recovered as a necessary 
 if there was reasonable cause for the suit." (r) The legal 
 expenses incurred by a deserted wife preliminary and 
 incidental to a suit for restitution of conjugal rights ; {s) 
 in obtaining counsel's opinion on the effect of an ante- 
 nuptial agreement for a settlement ; {f) in obtaining pro- 
 fessional advice as to the mode of dealing with trades- 
 people who were pressing for payment, and of preventing 
 
 (/) Biffin V. Bignell, 31 L. J. 189, C. P. ; 7 H. & N. 877. 
 
 (;«) Compare the meaning of tlie word "necessaries" when used with re- 
 gard to the contracts of an infant, and especially the question whether things 
 can be necessary for an infant with which he is already supplied, ante. Ryder 
 V. Womhwell, L. R. 4, Exch. 32 (Ex. Ch.) ; Jolly v, Rees, 33 L. J. 180, C. P., 
 judgment of Byles, J. 
 
 (n) Hunt V. De Blaquiere, 5 Bing. 550. 
 (p) Sheplierd v. Mackoul, 3 Camp. 326. 
 
 ( p \ Turner v. Rookes, 10 A. & E. 47. 
 
 \q) Brown v. Ackroyd, 5 E. & B. 819 ; 25 L. J. 193. Q. B. See Grindell 
 ▼. Godmond, 5 A. & E. 755. 
 
 (r) Leake, Contracts, 246. 
 
 (j) Wil.on V. Ford. L. R. 3, Exch. 63. 
 
 (/) Ibid. 
 
 21
 
 0-- 
 
 PARTIES TO ACTIONS. 
 
 a distress, (//) have been all held necessaries for which a 
 wife had authority to pledge the credit of her husband. 
 Where, again, a wife lived separate from her husband 
 for reasons which justilied her in doing so, and her child, 
 under seven years of age, was living with her against her 
 husband's will, an order of the Master of the Rolls having 
 been made under 23 Vict. cap. 54, giving the wife the 
 custody of the child, and the wife had no adequate means 
 of support, it was held by the majority of the Queen's 
 Bench, that reasonable expenses for the child were neces- 
 saries for the wife, for which she might pledge her hus- 
 band's credit." 
 
 {tt) Bazeley v. Forder, L. R 3, Q. B. 559; 37 L. J. 237, Q. B. 
 
 I. If the wife has been abandoned 
 by her husband without cause, he 
 may be sued for necessaries sup- 
 phed to her. Morrison v. Holt, 42 
 N. H. 4.79; Wing V. Hurlburt, 15 
 Vt. 613 ; CatUn v, Martin, 69 N. Y- 
 395 ; Walker v. Simpson, 7 Watts 
 & S. 83 ; Biddle v. Frazier, 3 Houst. 
 262; Dow V. Eyster, 75 111. 256; 
 Pearson v. Darrington, 32 Ala. 242. 
 And so if money be furnished to 
 the wife so deserted and she spend 
 it for necessaries. Kenyon v. Far- 
 ris, 47 Conn. 514; but if the hus- 
 band is willing and able to provide, 
 he is not liable for necessaries fur- 
 nished her against his request, even 
 during an action by her for divorce. 
 Catlin V. Martin, 69 N. Y. 395 ; nor 
 is he liable for services rendered 
 her by her attorney in a divorce 
 suit; Morrison v. Holt, 42 N. H. 
 479; Shelton v. Pendleton, 18 Conn. 
 421 ; Dow V. Eyster, 79 111. 256; 
 Williams v. Munroe, 18 B. Mon. 
 516. Contra, Porter v. Briggs, 38 
 Iowa, 167 ; even though she be suc- 
 
 cessful; Ray V. Alden, 50 N. H. 83; 
 but a husband has been held liable 
 for the fees of her attorneys em- 
 ployed to defend her from a prose- 
 cution by her husband to compel 
 her to keep the peace. Warner v. 
 Heiden, 28 Wis. 517 ; but see Ray 
 v. Alden, 50 N. H. 83 ; Wren v. 
 Hurlburt, 1 5 Vt. 607 ; Coffin v. Dun- 
 ham, 8 Cush. 404; Shelton v. Pen- 
 dleton, 18 Conn. 417. 
 
 A husband is not liable for the 
 rent of a pew in a church as a 
 necessary for his wife. St. John's 
 Parish v. Bronson, 40 Conn. 75; 
 nor for dreams and revelations or 
 visions of a person in a mesmeric 
 sleep. Carter v. Howard, 39 Vt. 
 106 ; see Sutler v. Martin, 50 Ga, 
 242. 
 
 As to what the husband will be 
 held liable for, generally, as neces- 
 see Furlong v. Hysom, 35 Me. 333 ; 
 Woolford v. Burns, 43 Vt. 330; 
 Stevens v. Story, Id. 327 ; Wood 
 V. O'Kelley, 8 Cush. 406; Knowles 
 V. Hull, 99 Mass. 562 ; Eames v.
 
 HUSBAND AND WIFE. 323 
 
 Effect of death. — On the death of a husband, his execu- 
 tors become liable on the contracts of his wife made dur- 
 ing coverture, on which he himself was liable; thus, 
 generally speaking, the executors of a husband are liable 
 for the debts of his wife contracted after marriage. 
 
 From the rule, however, that an agent's authority ex- 
 pires on the death of his principal, it results that if a 
 wife enters into contracts of a character to bind her hus- 
 band, believing him to be alive, but in reality after his 
 death, neither the wife herself nor the husband's execu- 
 tors, can be made in any way legally liable in respect of 
 such contracts. The widow can not be made liable, be- 
 cause, having originally had, before she knew of 
 her husband's death, full authority to contract, she [304] 
 intended to contract as an agent for him, and did 
 not make herself liable. Nor can she be treated as hav- 
 ing fraudulently represented that she had an authority 
 which she had not, or as having impliedly warranted that 
 the authority under which she intended to act actually 
 existed, {x) The executors can not be made liable, 
 because the contract was made after the death of the tes- 
 tator, (j) 
 
 After divorce the husband retains the liability which 
 he had incurred before the divorce on contracts made by 
 his wife during coverture. 
 
 ix) Smoat V. Ilhery, loM. «S: W. r ; 12 L. J- 357, Ex. 
 
 ( V) Blades V. Free, 9 B. & C. 167 ; 2 Williams, Executors, 6th ed., 1633 
 Compare 2 Smith, L. C, 6ih ed., 456. 
 
 Sweetzer, loi Mass. 78 ; Johnston rectly to the wife, a husband is 
 
 V. Allen, 39 How. Pr. 506; Walker liable for necessary medical attend- 
 
 V. Simpson. 7 Watts & S. 83; Hultz ance to his wife. Carter v. How- 
 
 V. Gibbs, 66 Pa. St. 36; Anderson ard, 39 Vt. 106. 
 V. Smith, 33 Md. 465 ; Mulvey v. A son-in-law is liable for neces- 
 
 State, 43 Ala. 316; Bonney v. saries furnished to his wife by his 
 
 Reardin, 6 Bush, 34; Day V. Wams- father-in-law, though there is no 
 
 l^y. 33 J"d. 145; Franklin v. Fos- implied promise to pay for them, 
 
 ter, 20 Mich. 75. Biddle v. Frazicr, 3 Houst. 258. 
 Unless the credit was given di-
 
 324 
 
 PARTIES TO ACTIONS. 
 
 Rule 69. — The following arc the results of enors 
 m joinder of parties in actions against husband or 
 wife :— ' 
 
 I. I. The husband cannot be 
 sued alone for the debt of his wife 
 contracted before marriage, and 
 judgment against him will be re- 
 versed. Angel V. Felton, 8 Johns. 
 149; Gage V. Reed, 15 Johns. 403 ; 
 Rennecker v. Scott, 4 G. Greene, 
 185. 
 
 Where the husband was sued 
 alone in partition of lands in which 
 his wife claimed a homestead in- 
 terest, and on demurrer to the com- 
 plaint, on motion, the wife was 
 brought in by supplemental com- 
 plaint. De Uprey v. De Uprey, 27 
 Cal. 329. 
 
 II. If a wife is a necessary party 
 and sued alone when the husband 
 should be joined, she may demur 
 if the objection appear on the face 
 of the bill, or she make the objec- 
 tion by plea or answer ; in either 
 case the plaintiff must amend by 
 making the husband a party. 
 Gardner v. Moore, 2 Edw. (N. Y.) 
 
 313- 
 
 The grantee of the husband filed 
 a bill for partition against the wife 
 alleging the lands to have been 
 held in common by husband and 
 wife. A demurrer to the bill was 
 allowed for the non-joinder of the 
 husband. McDermott v. French, 
 15 N.J. L. 78. 
 
 Where a wife was joined as party 
 defendant on a promissory note, 
 the objection that her husband was 
 not joined with her could only be 
 taken advantage of by plea in 
 abatement. 
 
 Judgment was reversed where the 
 husband should have been joined 
 with the wife, sued as executrix 
 with others. Ludlow v. Marsh, 3 
 N. J. L. 983. 
 
 Where a wife was sued to obtain 
 payment of a debt contracted prior 
 to marriage from property fraudu- 
 lently conveyed by her while sole 
 plaintiff was compelled to amend 
 his bill by joining the husband, 
 though he was a certified bankrupt. 
 Hamlin v. Bridge, 24 Me. 145. 
 
 III. Where a husband and wife 
 were joined in a suit for a debt con- 
 tracted during coverture, she being 
 improperly joined, the declaration 
 was held bad on demurrer, Leslie 
 V. Harlow, 18 N. H. 518. The 
 judgment was reversed where the 
 wife was joined in ejectment against 
 the husband because she lived with 
 him on the property. Meegan v. 
 Gunsollis, 19 Mo. 417 ; so in Claflin 
 V. Van Wagoner, 32 Mo. 252. 
 
 On improper joinder of wife 
 with husband on their joint promis- 
 sory note, plaintiff may amend by 
 discontinuing as to her and paying 
 costs. Harrington v. Thompson, 
 9 Gray, 65. 
 
 Where husband and wife were 
 sued for a conversion the jury 
 should have been instructed to 
 acquit as to the wife for misjoinder. 
 Marshall v. Oakes, 51 Me. 308. 
 Misjoinder of a feme covert as de- 
 fendant cannot be cured by enter- 
 ing a nolle prosequi as to the wife. 
 
 Judgment was reversed where
 
 HUSBAND AND WIFE. 325 
 
 1. If a husband is sued alone where his wife must 
 be joined, the error is fatal. 
 
 2. If a wife is sued alone, where she must be 
 joined, the only result is to expose the plaintiff to a 
 plea in abatement. 
 
 3. If a husband is sued jointly with his wife where 
 he ought to be sued alone, the error is fatal unless 
 amended. 
 
 I. If a husband is sued alone, &-€. — If a husband is 
 sued alone where his wife ought to be joined, e. g., on 
 contracts made with his wife before marriage, {s) the 
 error is fatal ; for if it appears on the record, it gives rise 
 to a demurrer, &c. ; and if it appears on the trial, it gives 
 rise to a nonsuit or adverse verdict. The defend- 
 ant may plead the general issue, e. g., never in- [305] 
 debted, and the error can not be amended at the 
 trial by adding the name of the wife, {a) 
 
 {z) Rule 69. 
 
 \a) Garrard v. Giubilei. ii C. B., N. S., 6i6 ; 31 L. J. 131, C. P.. esp. judg- 
 ment of Williams, J., 31 L. J. 133. C. P. ; 13 C. B., N. S., 832 ; 31 L. J. 270 
 C. P. (Ex. Ch.). 
 
 husband and wife were joined in judgment for a debt contracted by 
 an action for family supplies, though her could be rendered against her 
 the judgment was had by default, personally. Her separate estate 
 the wife not being properly joined, could, in equity, be subjected to 
 Childress v. Mann, 33 Ala. 206. the payment of the debt. The 
 Where husband and wife were question in this case is whether or 
 improperly joined in action on their not the common law is so far 
 joint promissory note which was changed by the code that a married 
 void as to her, and a non pros, as woman can bind herself by a con- 
 to her would strictly render plain- tract for the purchase of land, so 
 tiff non suit, and the husband hav- that she may be proceeded against 
 ing no defence to a new action, at law for the debt. Section 2131 
 plaintiff was allowed to amend by says: 'Husband and wife must be 
 striking out the wife's name. Hen- joined, either as plaintiffs or dc- 
 nessy v. Ryan, 7 R I. 548. fendants, when the wife has an in- 
 
 In Gibson v. Marquis. 29 Ala. terest in the subject matter of the 
 
 668. Walker. J., very clearly states suit, unless the suit relate to her 
 
 the rule and procedure, saying: separate estate, when she must sue 
 
 " The contract of a married woman or be sued alone. This statute per- 
 
 at common law was void, and no tains to the remedy for and against
 
 326 PARTIES TO ACTIONS. 
 
 2. If aivifc is sued ixlone,&-c. — If a wife is sued alone, 
 c. g., on contracts luaclc by her before marriage, a formal 
 error has been committed ; for she ought never to be sued 
 without her husband. Still, the person sued is in reality- 
 liable. She, therefore, can not treat the error as afford- 
 ing an answer to the action, but she may insist upon her 
 husband being joined as defendant. In other words, she 
 may plead her coverture in abatement. She can take no 
 other advantage of the error, {b) ' 
 
 3. If a husband is sued jointly, &€. — If a husband and wife 
 are sued jointly where the husband ought to be sued alone, 
 the error is fatal, unless amended, {c) It may, perhaps, 
 be a question whether this error can be amended. It re- 
 sembles rather the case of an action against a wrong 
 defendant than that of a simple misjoinder of defend- 
 ants, {d) 
 
 ib) BuUen, Pleadings, 3rd ed., 171 ; Lovel v. Walker, 9 M. & W. 299 ; 
 Milner v. Milnes, 3 T. R. 627, 631. 
 
 {c) See Chapter XXXIV. 
 
 [d) If a wife be sued alone in cases where she ought not to be joined, she is, 
 in efTect, sued on a contract on whkh she is not liable. An action, therefore, 
 against her can not succeed. If, however, the defense is that she is not liable, 
 necause at the time of making the contract she was a married woman, her 
 coverture must be specially pleaded. Bullen, Pleadings, 3rd ed., 598 ; 7 R. G. 
 rf. T. 53- 
 
 a feme covert, but does not, of coverture. We decide, therefore,, 
 itself, affect her power to contract, that Mrs. Marquis, who is and was. 
 So far as it is concerned, the wife's when she executed the note in suit, 
 capacity to bind herself by a con- a feme sole, is not liable in this 
 tract pending her coverture is un- action. 
 
 touched and reinains as at common " The defect appears in the com- 
 law. Whether there may not be plaint, and such a defect thus ap- 
 contracts which by virtue of other pearing is available by demurrer, 
 provisions of the code could bind Under the previous adjudications 
 her even at law, and upon which of this court, the defence of the 
 she might be sued under section coverture of one defendant does 
 2131, we do not undertake to decide not discharge the other, and the 
 in this case. It is certain that there plaintiff could, after judgment in 
 is no provision of the code which favor of the feme covert, on demur- 
 will admit of the construction that rer, proceed in the suit against her 
 the common law doctrine of the husband, who is her co-defendant, 
 wife's incapacity to contract, so as * * * The demurrer to the 
 to subject herself to suit at law, is complaint should, therefore, have 
 entirely abolished, or that she may been taken by the feme covert de- 
 be sued at law upon a note given fendant alone." 
 for the purchase of land during her
 
 BANKRUPT AND TRUSTER. 
 
 CHAPTER XVII. 
 
 BANKRUPT AND TRUSTEE. 
 
 Rule 70.— A bankrupt can not after his discharge 
 be sued on contracts made before bankruptcy, {a) ' 
 
 Bankruptcy does not of itself {d) free the bankrupt 
 from UabiUty on his contracts, {c) 
 
 The following contracts with the bankrupt are put an 
 end to altogether as far as he is concerned, by and from 
 the date of the order of adjudication. 
 
 I St. Covenants or other contracts having relation to oner- 
 ous property, which the trustee may either adopt or dis- 
 claim.— \N\\Qt\\Qr the rights and obligations under such 
 covenants or contracts are adopted or disclaimed by the 
 trustee, the rights and obligations of the bankrupt cease 
 from the time of his being adjudicated a bankrupt. If, 
 for instance, the bankrupt has a lease of property under 
 which he is bound to repair, the trustee may adopt the 
 lease, in which case all liability for future breaches 
 of the covenant -to repair, passes away from the [307 J 
 
 (a) Bankruptcy Act. 1869. ss. 23, 33, 31. and 49. Debts or liabilities con- 
 tracted after the date of the order of adjudication are not provenble under the 
 bankruptcy, or barred by the order of discharge. Bankruptcy Act, 1869. ss. 
 31, 49. 
 
 (b) Spencer v. Demett. L. R. r, Ex. 123 ; Hartley v. Occnwood, 5 R. & 
 Aid. 95 ; Jones v. Hill, L. R. 5. Q- B. 230. See Bankrup cy Act. 1S69. s 49. 
 by which the discharge must be pleaded. 
 
 (f) A bankrupt sued at any time after the presentation of a bankruptcy 
 petition should apply to the court having jurisdiction in bankruptcy to restrain 
 further proceedings ; and this he may do after the presentation of the petition 
 in respect of an action in progress at the commencement of the bankruptcy. 
 The court has discretion whether to stay such actions or not. Bankruptcy Act 
 T<i69, ss. I J 4.
 
 328 JWKJ'IJiS ro ACTIOxYS. 
 
 bankrupt ; or the trustee may disclaim any interest in 
 the property, in which case also the bankrupt ceases, 
 from the date of the adjudication, to have any interest in 
 the property or to be liabk^ in 'uiy way for future breaches 
 of the covenants, {d) 
 
 2nd. Indentures of appreniieesliip. — An indenture of 
 apprenticeship is completely discharged, at the will either 
 of the bankrupt or the apprentice, by the order of adjudi- 
 cation, ie) 
 
 The g-eneral principle as to all other liabilities on con- 
 tracts made by the bankrupt before bankruptcy, is that if 
 the claims against him ai'e proveable, the order of dis- 
 charge (/) (not the bankruptcy) frees him from liability 
 for them. The tendency of successive Bankruptcy Acts 
 has been so to extend the number of claims which are 
 made proveable, that it may now be laid down that (sub 
 ject to some few exceptions hereafter enumerated) all 
 claims against a bankrupt arising on contracts or prom- 
 ises made by him before ' bankruptcy are proveable 
 against his estate, and are, therefore, barred by his dis- 
 charge, {g) 
 
 {d) Bankruptcy Act, r86g, s. 23. As regards breaches committed before 
 the adjudication, the bankrupt's lial)ility is exactly the same as for the breach 
 of any other contract made by him before bankruptcy. 
 
 (e) Bankruptcy Act, i86g, s. 33. 
 
 (/) Ibid., s. 49- 
 
 I g) This is the result of the following provisions of the Bankruptcy Act. 
 1869, s. 31 : — 
 
 "Demands, in the nature of unliquidated damages, ari>ing otherwise than 
 by reason of a contract or promise [/. e., demands arising from torts], shall not 
 be proveable in bankruptcy ; and no person having notice of any act of bank- 
 rupicy available for adjudication against the bankrupt shall prove for any 
 debt or liability contracted by the bankrupt subsequently to the date of his so 
 having notice. 
 
 " Save, as aforesaid, all debts and liabilities, present or future, certain or con- 
 tingent, to which the bankrupt is subject at the date of the order of adjudication, 
 or to which he may become subject during the continuance of the bankruptcy, 
 by reason of any obligation incurred previously to tlie date of the order of 
 adjudication, shall be deemed to be debts proveable in bankruptcy, and may be 
 proved in the prescribed manner before the trustee in the bankruptcy. 
 
 " ' Liability ' shall, for the purposes of tliis Act, include any compensation 
 for work or labor done ; any obligation or possibility of an obligation to pay 
 money or money's worth on the breach of any express or implied covenant, 
 COM) 'act, agreement, or undertaking, whether such breach does or does no»
 
 BANKRUPT AND TRUSTEE. 329 
 
 There are some debts or liabilities which are not 
 got rid of by the order of discharge, and which, [308] 
 therefore, constitute the exceptions to the general 
 rule under consideratioti. 
 
 Exception i. — Debts or liabilities held not to be proveable 
 by the Court of Bankruptcy. "'' 
 
 " Any person aggrieved by any estimate made by the 
 trustee may appeal to the court having jurisdiction in 
 bankruptcy, and the court may, if it think the value of the 
 debt or liability incapable of being fairly estimated, make 
 an order to that effect, and upon such an order being 
 made, such debt or liability shall for the purposes of this 
 Act, be deemed to be a debt not proveable in bank- 
 ruptcy." {h) 
 
 Exception 2. — Debts or liabilities contracted after notice to 
 the creditor of an act of bankruptcy. (/) ' 
 
 Exception 3.— Debts or liabilities incurred by means of fraud 
 or breach of trust. {Ji) " 
 
 occur, or is or is not likely to occur, or capable of occurring, before the close of 
 the bankruptcy ; and generally it shall include any express or implied engage- 
 ment, agreement, or undertaking to pay, or capable of resulting in the payment 
 of money, or money's worth, whether such payment be as respects amount fixed 
 or unliquidated ; as respects time present or future, certain or dependent on any 
 one contingency, or on two or more contingencies ; as to mode of valuation capa- 
 ble of being ascertained by fixed rules, or assessable only by a jury, or as a matter 
 of opinion." 
 
 (A) Bankruptcy Act, 1869, s. 31. Compare, as to the meaning, under the 
 Bankruptcy Act, of " dei)t and lial>ility," sect. 31 and s. 4- 
 
 A number of claims were held not proveable under former Acts, mainly on 
 the ground that their value could not be estimated. It is possible that many 
 claims decided not to be proveable under the former Acts, may be held to be. 
 as a matter of fact, incapable of proof under the ])res(.-nt Act. 
 
 (/•) Ibid., s. 31. 
 
 (i) Ibid., s. 49. 
 
 1. Here, after the time of the mour v. Street, 5 Neb. 93; Miller v. 
 
 filing the petition. Henncciuin v. Chandler, 29 La. Ann. 92. 
 
 Clews 77 N. Y. 429; Mitchell v. 2. Flagg v. Fly, I Edm. Sel. Cas. 
 
 Singleterry, 19 Ohio, 293; Halli- 206. Liability for money received 
 
 burton V. Carter. Sfi Mo. 346 ; Sey- as a fiduciary to be used in a par-
 
 330 PARTIES TO ACTIONS. 
 
 [309] Excepiion 4. — Debts or liabilities whereof the bank 
 
 rupt has obtained forbearance by fraud. (/) ' 
 
 Exception 5. — Debts due to the Crown. (///) 
 
 Exception 6. — Debts with which the bankrupt stands charged 
 for an offense against a statute relating to any branch of the 
 public revenue, or at the suit of the sheriff or other public 
 officer on a bail bond, entered into for the appearance of any 
 person prosecuted for any such offense. (//) 
 
 Rule 71. — An undischarged bankrupt remains 
 liable on contracts made by him before bankruptcy. 
 
 The mere bankruptcy not being itself a discharge from 
 liabihties, an undischarged bankrupt is obviously up to 
 the close of the bankruptc}^ still liable on his contracts, 
 though, as already explained, (o) he may apply to the 
 court to stay an action against him.' 
 
 (/) Bankniptcy Act, 1S69, s. 49. 
 (m) Ibid. 
 
 (m) Ibid. He may, however, be dischar_c;ed from the last two classes of 
 debts by the consent of the Commissioners of tlie Treasury. 
 (o) See ante. 
 
 ticular way, is not affected by dis- creditor having no notice of the 
 
 charge in bankruptcy. Matteson v. bankruptcy proceedings, will not 
 
 Kellogg, 16 111. 547. Money col- be discharged. Symonds v. Barnes, 
 
 lected by an attorney for his client 59 Mc. 191. See contra, Magoon 
 
 and wrongfully detained, is not a v. Warfield, 3 Iowa, 293. 
 debt which would be discharged in I. A judgment on a contract in- 
 
 bankruptcy. Heffern v. Jayne, 39 duced by fraud is not " created " 
 
 Ind. 46; Wolcott V. Hodge, 15 by fraud, within the bankrupt act. 
 
 Gray, 547. An auctioneer who has and the recovery of such judgment 
 
 failed to pay over moneys received is a waiver of the fraud, and a dis- 
 
 by him for a city, is not released by charge in bankruptcy is a waiver of 
 
 discharge, nor are his sureties, the fraud. Palmer v. Preston, 45 
 
 Jones V. Russell, 44 Ga. 460; Mc- Vt. 154; Seuman v. Strauss, 84 N. 
 
 Minn v. Allen, 67 N. C. 131; Cro- Y. Sup. Ct. 6. 
 
 nan v. Cutting, 104 Mass. 245. A 2. Payson v. Dietz, 2 Dili. 504; 
 
 debt fraudulently omitted by the Re Secchi, 10 Blatchf. 29; Re Mal- 
 
 bankrupt from his schedule, the lory, i Sawyer, 88 ; Davis' Case,
 
 BANKRUPT AND TRUSTEE. 331 
 
 But a bankruptcy, may be closed, and yet under the 
 present Act the bankrupt may not obtain his discharge, 
 and thus may, even after the proceedings in bankruptcy 
 are ended, remain an undischarged bankrupt, {p) 
 
 The result of the Act seems to be, that during [310J 
 three years after the close of the bankruptcy, no 
 claim depending on a contract made before the adjudica- 
 tion of bankruptcy can be enforced against the property 
 of the bankrupt ; but it would rather appear that there is 
 nothing to prevent a creditor from bringing an action 
 against the bankrupt in respect of such claim during the 
 three years, {q) 
 
 (/ ) His position, which is peculiar, is thus defined by the act : — 
 
 " Where a person^who has been made bankrupt has not obtained his dis- 
 charge, then, from and after the close of the bankruptcy, the following con- 
 sequences shall ensue : — 
 
 " I. No portion of a debt proveable under the bankruptcy, shall be enforced 
 against the property of the person so made bankrupt until the expiration of 
 three years from the close of the bankruptcy, and during that time, if he pay 
 to his creditors such additional sum as will, with the dividend paid out of his 
 property during the bankruptcy, make up ten shillings in the pound, he shall 
 be entitled to an order of discharge, in the same manner as if a dividend of ten 
 shillings in the pound had originally been paid out of his property. 
 
 " 2. At the expiration of a period of three years from the close of the bank- 
 ruptcy, if the debtor n.ade bankrupt has not obtained an order of discharge, 
 any balance remaining unpaid in respect of any debt proved in such bank- 
 ruptcy (but without interest in the meantime), shall be deemed to be a sub- 
 sisting debt, in the nature of a judgment debt, and, subject to the rights of any 
 persons who have become creditors of the debtor since the close of his bank- 
 ruptcy, may be enforced against any property of the debtor with the sanction 
 of the court which adjudicated such debtor a bankrupt, or of the court having 
 jurisdiction in bankruptcy in the place where the property is situated, but to 
 the extent only, and at the time and in manner directed by such court, and 
 after giving such notice and doing such acts as may be prescril^ed in tliat be- 
 half." Bankruptcy Act, l36g, s. 54. The expression debt proveable under the 
 bankruptcy, includes, speaking generally, all liabilities arising out of any con- 
 tract made before the adjudication of bankruptcy. See Chapter XVII. 
 
 {q) See, however. Bankruptcy Act, 1S69, s. 12, compared with sect. 54, 
 
 I Sawyer, 260; Mainwaring v. 107; Smith v. Soldier's, &c., Co., 
 
 Koiins. 35 Tex. 171 ; Re Campbell, 35 N. J. L 60 ; Fritsch v. Van Mit- 
 
 3 Pittsb. 96 ; Re Atkinson, 3 Piltsb. endorf, 2 Cin. 261 ; Stone v. IJrook- 
 
 424; and as to the effect of pro- ville IJank, 39 Ind. 284; Stuart v. 
 
 ceedings in bankruptcy on suits Hines, 33 Iowa, 61 ; Cannon v. 
 
 pending; Foster v. Wyiie, 60 Me. Walford, 22 Gralt. 195.
 
 332 PAKn/iS TO .icnoNS. 
 
 After the lapse of the three years, any unpaid balance 
 of debt proved under the bankruptcy becomes, in case 
 the debtor has not obtained an order of discharge, a judg- 
 ment debt, and payment can, it is presumed, be enforced 
 either by execution or by an action on the judgment. 
 
 Rule 72. — The trustee can be sued as a trustee 
 on contracts entered into by him in his character as 
 a trustee. 
 
 The rule under the old Bankruptcy Acts was, that the 
 assignees of a bankrupt could not be sued as assignees at 
 law. They did not (nor does the trustee) represent the 
 bankrupt as regarding his liabihties. In other words, 
 they could not be sued on contracts made by the bank- 
 rupt in the same way in which an executor can be 
 [311] sued on the contracts of his testator, since the 
 mode in which a creditor of a bankrupt must en- 
 force his claim is not by action against the assignees or 
 trustee, but by proof against the estate. 
 
 The assignees, on the other hand, i^ they themselves 
 entered into contracts, were personally liable, if at all. (r) 
 If, for instance, as they had power to do, they adopted 
 contracts entered into by the bankrupt, they personally 
 took the liabilities of the contracts, {s) and thus, on adopt- 
 mg a lease made to the bankrupt, incurred the same 
 liabilities as any other assignees, and could get rid of them 
 in the same way as other assignees, by assigning over the 
 lease. (/) 
 
 The position of the trustee under the present Act is 
 apparently different. He, like the assignees, is in no 
 sense liable, and can not be sued for the breaches of con- 
 tract of the bankrupt ; but he can enter into engagements 
 in his character as a trustee, and such engagements will 
 
 (r) Ridout v. Brough, Cowp. 134 ; Broom, Parties, 2nd ed., s. 183. 
 
 (s) Gibson v. Carruthers. 8 M. & W. 321. 
 
 {/) Onslow V. Corrie. 2 Madd. 330 ; Broom, Parties, 2nd ed.. s. 230.
 
 BANKRUPT AND TRUSTEE. 333 
 
 bind succeeding trustees. This, at least, seems U) be the 
 effect of the following- enactment : — {u) 
 
 " The trustee of a bankrupt may sue and be sued by 
 
 tne official name of ' the trustee of the property of , a 
 
 bankrupt,' inserting the name of the bankrupt, and by 
 that name may hold property of every description, make 
 contracts, sue and be sued, enter into any engagements 
 binding upon himself and his successors in office, and do 
 all other acts necessary or expedient to be done in the 
 execution of his office." 
 
 It may be inferred from this, that if a trustee adopts a 
 contract made with the bankrupt, — e. g., a lease, he and 
 his successors become liable upon it as trustees. 
 
 The trustee can, when the bankruptcy is closed, apply 
 to the Court for a release ; {x) and, the order of re- 
 lease, if granted, discharges him "from all liability [312] 
 in respect of any act done or default made by him 
 in the administration of the affairs of the bankrupt, or 
 otherwise in relation to his conduct as trustee of such 
 bankrupt ; but such order may be revoked by the Court 
 on proof that it was obtained by fraud."' 
 
 (u) Bankruptcy Act, 1869, s. 83, cl. 7. 
 {x) See Bankruptcy Act, 1869, ss. 51-53. 
 
 I. The assignee of the bankrupt of the assignee may sue thereon in 
 
 is the only person to maintain an the name of the assignee. Hart v. 
 
 action upon claims and demands Stone, 30 Conn. 97 ; Wilcox v. 
 
 due the estate, after the estate has Toledo, &c., Ry., 43 Mich. 585 ; 
 
 been transferred to him. Glenny v. Camack v. Bisquay, 18 Ala. 286. 
 
 Landdon. 98 U. S. 20 ; Rossman v. But a foreign assignee cannot sue 
 
 McFarland, 9 Ohio St. 377 ; Harris in the local courts in his own name, 
 
 V. Cornell, 80 111. 56 ; Jenkins v. to the detriment of resident crcdi- 
 
 Greenbaum, 95 111. 18; Langdon tors. Perry v. Barry, i Cranch C. 
 
 V. Thompson. 25 Minn. 511; C. 204; Upton v. Hubbard, 28 
 
 Wheeler v. Wheedon, 9 How. Pr, Conn. 284; Booth v. Clark, 17 
 
 299; and the creditor will be ena- How. 337; Hoyt v. Thompson, 5 
 
 bled to sue in his own name, even N. Y. 332; Milne v. Moreton, 6 
 
 though the assignee fail to sue two Binn. 359; Metcalf v. Yeaton, 51 
 
 years. Trimble v. Woodhead, 1 1 Me. 200 ; Smith v. Railroad Co., 23 
 
 Reporter, 553. Wis. 270. 
 
 The purchaser of a chose in action
 
 334 PARTIES TO ACTIONS. 
 
 CHAPTER XVIII. 
 
 EXECUTORS, ADMINISTRATORS, AND HEIRS. 
 
 Rule 73. — The personal representatives {a) of a 
 deceased person (/. e., his executors or administrators) 
 {b) can be sued on all contracts made with him 
 whether broken before or after his death. 
 
 Executors or administrators represent the deceased, or 
 rather, his personal estate, and are liable, to the extent 
 of the assets which have come into their hands to be ad- 
 ministered, upon all contracts made by him for breaches 
 before or after his death, ic) Their liability is the same, 
 whatever the form {d) or the nature of the testator's or 
 mtestate's contracts ; that is to say, an executor, &c., i? 
 bound, not only by the promise of the testator to pay a 
 debt, but by his undertaking to perform any other act, — 
 e. g.,\.Q> give a fortune to his daughter, ic) to build a house, 
 (/) and so forth. So, if M., the testator, enters into a 
 contract with A., that N. should serve A. for a certain 
 time, and after M.'s death, N., before the expiration of the 
 
 time, leaves A.'s service, A. can sue X., M.'s execu 
 [314] tor, for the breach of the agreement, {g) So, where 
 
 A. had entered into a contract with M. to supply 
 him with a certain quantity of slate monthly at a fixed 
 price, and M. agreed to receive a certain number of tons 
 
 (a) See, for distinction between real and personal representatives, Chaptei 
 XVII. 
 
 {J}) The liability of an executor is, except where the contrary is stated, the 
 6aine as that of an administrator, and vice versa. 
 
 (c) Bullen, Pk-adings, 3rd ed., 154. 
 
 {d) 2 Williams, Executqrs, 6tli ed., 1590-1592. 
 
 (e) Bacon, Abr., Executors, P. 2 ; 2 Williams, Executors, 6th ed., 159T. 
 
 (/) Quick V. Ludboirow, 3 Bulst. 30; Wentworth v. Cock, 10 A. & E. 4X 
 
 ^S) Williams. Executors. 6th ed.. i';o2.
 
 EXECUTORS AND ADMINISTRATORS. 335 
 
 until a date fixed upon in the agreement, and died before 
 that date, it was held that X., his personal representative, 
 who refused to receive the slate, was liable to an action 
 at the suit of A., on the ground that he was bound to pay 
 damages out of the assets if he did not take the contract 
 upon himself, {h) 
 
 Though an executor is at common law (/) not liable 
 for the torts of his testator, he can often be sued for what 
 is in reality a tort in the form of an action for breach of 
 contract. At common law, for example, trover does not 
 lie against an executor for a conversion by his testator ; 
 but if the testator converts and sells goods of anothei 
 person, the owner can bring against the executor ar_ 
 action for money received. So, if one man take the horse 
 of another, and bring him back again, his executor can 
 not (independently of statute) be sued for the trespass, 
 though the wrong-doer might have been so sued ; but an 
 action can be brought against the executor for the use 
 and hire of the horse ; and though the executor of an inn- 
 keeper can not be sued in tort (unless under 3 & 4 Will. 
 IV. c. 42, s. 2) for the loss of a guest's goods, he can be 
 sued for the breach of an implied promise to keep them 
 safely. (/) 
 
 (h) Wentworth v. Cock, 10 A. & E. 42. 
 
 (i) He is now, generally speaking, liable by statute. See Chapter XXXII. 
 post. 
 
 (/) Morgan v. Rarey, 2 Fost. & F. 2S3. See, for these and further exam- 
 ples, Williams, Executors, 6th ed., 159S, 1602. It should be noticed that in 
 the last case, as in the similar one of an action against a carrier for breach of 
 the contract to carry safely, the real ground of the action is a breach of con- 
 tract, and not a tort. 
 
 It is not quite clear how far an executor can be made responsible for an 
 act which is not really a breach of contract, by being sued in the form of an 
 action ex contractu. He can not, for example, be sued for a. debt due on a 
 penal statute (2 Williams, Executors, 6th ed., 1597 ; Anon., Dyer, 271 a.) ; and 
 it is questionable to what extent the executor can be made liable in an action 
 ex contractu for the negligence of his testator ; e. g., as a carrier, surgeon, &c. 
 Hit liability probably depends u|)on the answer to llie iuquiry, whether such 
 actions are to be considered as in substance actions for breach of contract or 
 actions for tort (compare Powell v. Layton, 2 N. K. 370; Alton v. Midland 
 Rail. Co., 19 C. B„ N. S. 213 ; 34 L. J. 292, C. P. ; Poz/.i v. Shipman, 8 A. & 
 E. 963). P.ut it seems, on the wiiole, that an executor — at any rate of a carrier 
 — can be made liable in an action on contract for his negligence. Chapter 
 XIX.
 
 33t) PARTIES TO ACTIONS. 
 
 [315] An executor may i'urtlicr be liable to an action 
 where the testator coulil not have been sued; e. ^., 
 where he has contracted that iiis executors shall pay ;^20 
 after his death. (;//) 
 
 The personal representatives arc bound by all con- 
 tracts made by the deceased, whether named the rein or 
 not, and even when the heir is named and they are not 
 named, (;/) and their liability is not diminished by the 
 fact that the real representatives may be also liable, {j) 
 Hence, an executor ma}' be sued on a covenant real, i. e., 
 one which runs with the land, and descends to the heir. 
 (/) His liability, therefore, exceeds his rights, in respect 
 of such covenants, {q) for an executor can not sue on them, 
 even though broken in the testator's lifetime, unless sub- 
 stantial damage was caused by the breach to the personal 
 estate. 
 
 Exception i. — Contracts limited to the lifetime of the de- 
 ceased, (r) 
 
 Exception 2. — Covenants in law not broken during the life- 
 time of the deceased. 
 
 Certain covenants are annexed by the law to the use 
 of certain expressions. Whenever, for example, certain 
 terms are used in a lease, it is inferred, as a matter of law, 
 that the person using them enters into certain covenants. 
 
 Thus, under a lease by deed, the word demise or 
 [316] let, or any equivalent words sufficient to constitute a 
 
 lease, import a covenant for title and for quiet en- 
 joyment, unless there be an express covenant on either 
 point, in which case no implication can be raised from 
 such words, {s) Such implied contracts are limited to the 
 
 <■;«) Powell V. Graham, 7 Taunt. 580. 
 
 ^«) Bacon, Abr. Heir, F. ; Williams, Executors, 6th ed., 1591, 1592. 
 
 {p) Ibid., 1616, 1617. 
 
 (/>) Ibid. 
 
 (^) See ante. 
 
 (r) Rule 41, Exception 2. It would appear that an executor can not be 
 sued for a breach of promise of marriage by his testator See Chamberlain v 
 Williamson, 2 M. & S. 408. 
 
 (s) Line v. Stephenson, 4 Bing. N. C. 678 ; 5 Bing. N. C. 183 ; Adams v 
 Gibney, 6 Bing. 656, 666.
 
 EXECUTLRS AND ADMINISTRATORS. 337 
 
 duration of the lessor's estate, and cease (/) upon its de- 
 termination, ill) No action lies against an executor or 
 administrator upon such a covenant at law which is not 
 oroken until after the death of the testator, {y) Accord- 
 mgly, where a tenant for life remainder over, demised to 
 the lessee, his executors, &c., for a term of fifteen years, 
 without any express covenant for quiet enjoyment, and 
 the lessee was evicted by the remainderman after the 
 death of the tenant for life, but before the expiration of 
 the fifteen years, it was held that no action of covenant 
 could be maintained by the lessee against the executor of 
 the tenant for life in respect of such eviction, although it 
 was admitted that the use of the word demise in the lease 
 imported a covenant in law for quiet enjoyment, (w) 
 
 Exception 3. — Contracts on which the deceased must have 
 been sued jointly with other persons, [x) 
 
 SUBORDINATE RULE I. 
 
 An action can be commenced against an executor before pro- 
 bate, but an action cafi not be commenced against 
 an administrator before letters of administration [317] 
 granted to him. 
 
 A person who in any way acts as executor, without 
 taking out probate, and, indeed, without any claim to be 
 executor, incurs the liabilities attaching to the position 
 of executor, and, therefore, against such a person who is 
 an executor by his own wrong, or, as he is called, an 
 executor de son tort, an action can be, not only com- 
 menced, but also maintained, even though he never prove 
 the will or take out letters of administration, {y) 
 
 (/) Line v. Stephenson, 4 Bing. N. C. 678 ; 5 Bing. N. C. 183 ; Adams v. 
 Gibney, 6 Bing 656, 666 ; see Williams v. Burrell, i C. B. 402 ; Penfold v, 
 Abbou, 32 L. J. 67, Q. B. 
 
 («) Hulien, Pleadings, 3rd ed., 205, n. 
 
 (v) 2 Williams, Executors, 6th ed.. 16 18. 
 
 (w) Ibid. ; Adams v. Gibney, 6 Bing. 656. Compare, as to difference be- 
 tween covenants in law and implied covenants, William v. Burrell, I C. B. 
 402 ; 14 L. J. 98, C. P. ; Smith, Landlord ai\d Tenant, 293, n. 19. 
 
 (x) Compare Rule 41, Excejition 4 ; ;ind see Rule 52 for explanation. 
 
 (v) I Williams, Executors, 6th ed., 247-262. 
 22
 
 338 PARTIES TO ACTIONS. 
 
 SUBORDINATE RULE II. 
 
 On the death of a dcfcnda7it the action may be carried on 
 against his executor or administrator. 
 
 If the cause of action against the deceased is one 
 which survives against his representatives, an action 
 commenced against him does not on his death abate, but 
 may be carried on against his representatives. 
 
 Rule 74. — An executor or administrator must be 
 sued in his representative character; i. e., as executor 
 or administrator, on all contracts made by the de- 
 ceased. 
 
 An executor is responsible for the contracts of the 
 testator, simply because he is executor, and only in so 
 far as he has assets. He must, therefore, be sued as 
 executor on all contracts made by the deceased. The 
 same principle applies where the ground of the executor's 
 liability is not a contract of the testator's, but some act of 
 his which gives rise to a so-called implied contract ; and 
 this holds good even where the breach of the implied con- 
 tract did not take place until after testator's death. 
 [318] Where, for example, M. and A. are co-sureties, and 
 after M.'s death A. is compelled to pay the whole 
 debt, A. certainly may, and apparently must, sue X.. the 
 representative of M., in X.'s representative character , 
 i. e.y as executor or administrator, {a) 
 
 Rule 75. — An executor or administrator must be 
 sued in his personal character on contracts made by 
 himself. * 
 
 {a) 2 Williams, Executors, 6th ed., 1637, 1638. Compare Corner v. Shew 
 J M. & W. 350, 353. 
 
 I. Upon contracts wholly arising executor or administrator is liable 
 after tiie death of the decedent, the individually. Kerchner v. McRae
 
 EXECUTORS AND ADMINISTRATORS. 339 
 
 An executor is personally liable on contracts made by 
 bimse.f, even though they have reference to, and are for 
 the benefit of, the testator's estate, {b) Thus an executor. 
 
 {b) Ibid. 
 
 80 N. C. 223 ; Smith v. Fellows, 58 
 Ala. 471 ; Solliday v. Bissey, 12 Pa. 
 St. 349 ; Grier v. Huston, 8 Serg. & 
 R. 405 ; Beatty v. Gingles, 8 Jones, 
 303 ; Wile V. Wright, 32 Iowa, 451 ; 
 Adams v. Butts, 16 Pick. 344 ; Davis 
 V. French, 20 Me. 22 ; Beatty v. 
 Tete, 9 La. Ann. 130. 
 
 And an executor carrying on the 
 business of the decedent according 
 to his will, will be liable for the 
 debts thus contracted. Laible v. 
 Ferry, 32 N. J. Eq. 792. 
 
 If an action has been brought 
 against an executor individually, 
 when the debt is properly charge- 
 able on the estate, the pleadings 
 may be amended by inserting his 
 representative capacity and the 
 proper averments. Poole v. Hines, 
 52 Ga. 502 ; Tyler v. Langworthy, 
 37 Iowa, 555; Waldsworth v. 
 Waldsworth, 2 Ohio, 160. 
 
 It may be assumed that when a 
 suit is brought against a person as 
 administrator it is against him in 
 his official capacity. Irving v. Mel- 
 ton, 27 Ga. 331 ; Rhea v. Puryear, 
 26 Ark. 345. 
 
 When the defendant dies pend- 
 ing suit, his administrator is a neces- 
 sary party defendant, if the suit 
 survives. Hayden v. Vrecland, 37 
 N. Y. 373 ; Piatt v. St. Clair, 5 Ohio 
 555 ; Parshall v. Moody, 24 Iowa, 
 318; Berkey v. Judd, 27 Minn. 
 476; Tupper v. Cassell, 45 Miss. 
 35 J ; Norton v. Jamison, 23 La. 
 Ann. 102. But where the death 
 
 occurs after verdict, judgment may 
 be entered thereon against the 
 executor without action. Berkey v. 
 Judd, 27 Minn. 476 ; Norton v. 
 Jamison, 23 La. Ann. 102. The 
 representative of a decedent can 
 never be joined with the survivor 
 of a joint contract. New Haven, 
 &c,, Co. v. Hayden, 119 Mass. 364; 
 State Treasurer v. Friott, 24 Vt. 
 136; Fisher v. Allen, 36 N, J. L. 
 203; Eich v. Scivers, 73 111. 194; 
 County of Wapello v. Bigham, 10 
 Iowa, 41 . But see Halstead v. Cock- 
 roft, 49 How. Pr. 342 ; Dennis v. 
 Charlick, 6 Hun, 22 ; Dingman v. 
 Amsink, 'j'j Pa St. 117; Bradford 
 v. Curlee, 41 Mass. 560; Burgoyne 
 V. Ohio Ins. Co., 5 Ohio St. 586; 
 Taylor v. Taylor, 5 Humph, no; 
 Henderson v. Talbert, 5 Sm. & M. 
 no. But may be sued alone as 
 though the contract were joint and 
 severa'.. Curtis v. Mansfield, 11 
 Cush. 154; Cochrane v. Gushing, 
 124 Mass. 219; Thompson v. John- 
 son, 40 N. J. L. 221 ; Bolinger v. 
 Fowler, 14 Ark. 27. 
 
 The general right to sue an ex- 
 ecutor upon a claim against the 
 estate of the decedent has been 
 taken away by statute in many 
 states, and now no action can be 
 mainiained until the claims have 
 been presented for settlement. 
 Keenan v. Saxton, 13 Ohio 42; 
 Heutch V. Porter, 10 Cal. 559, In 
 re McCausiand, 52 Cal. 568 ; Uni- 
 versity of Vermont v. Baxter, 45
 
 340 PARTIES TO ACTIONS. 
 
 though not personally liable for the contracts of the de- 
 ceased, may make himself liable for them by a new con- 
 tract, which, under the Statute of Frauds, must be in 
 writings, and which, unless it be by deed, is of no force 
 without a consideration, {c) An executor or administra- 
 tor, again, who carries on the testator's trade, is per 
 sonally liable on contracts made in respect of such trade, 
 and is so liable on an implied contract to pay for the 
 suitable funeral expenses of the deceased, {d) As, how- 
 ever, an executor's liability in this case depends on his 
 having assets, he may defeat an "action founded only on 
 the implied contract, by showing that he has no assets, {e) 
 The following are some of the distinctions between an 
 action against an executor in his representative character 
 
 and an action against him in his personal character. 
 [319] The judgment against an executor, when liable 
 
 only as such, is a judgment de bonis testatoris, or 
 against his testator's goods. The judgment against an 
 executor, when liable personally, is a judgment de bonis 
 propriis, or against his own goods. (/) An executor, 
 sued as such, can raise defenses, e. g., that he has fully 
 administered the estate of the testator, which, from their 
 nature, are available for an executor or an administrator 
 only, whilst, on the other hand, he can not raise a defense, 
 such as his own bankruptcy, which might be available in 
 an actif)n against him personally, {g) The difference 
 between the two kinds of actions is further seen in the 
 rules as to — 
 
 Set-off. — In in action against an executor for debts 
 
 {c) 2 Williams, Executors, 6th ed., 1640, 1648, 1654. See. as to considera- 
 tion, ante. 
 
 {(/) Brice v. Wilson, 8 A. & E. 349. 
 
 (e) Under the plea of never indebted, viz., Tugwell v. Heyman, 3 Camp 
 298 ; Rogers v. Price, 3 Y. & J. 28 ; Bullen, Pleadings, 3rd ed., 161. 
 
 (/) 2 Williams, Executors, 6th ed., 1823, 1824. 
 
 (g) I Ibid., 603 ; 2 Ibid., 1793. 
 
 Vt. 650; County of Linn V. Day, 16 ciency cannot be decreed against 
 
 Iowa, 162 ; Sampson v. Sampson, the general assets of the estate. 
 
 63 Me. 332. So if a mortgage be Null v. Jones. 5 Neb. 503 ; Fallon 
 
 not presented for allowance, defi- v. Butler, 21 Cal. 28.
 
 EXECUTORS AND ADMINISTRATORS. 341 
 
 due Irom the testator, debts due to the testator {Ji) may be 
 set-off, but not debts due to the executor as executor. (/) 
 
 In an action against an executor on promises made by 
 him as executor — e. g., on an account stated by him as 
 executor m respect of debts due from the testator, — it is 
 possible that a debt due from the plaintiff to the testator 
 may be set-off, since the account stated by the executor as 
 such shows a debt due from his testator to the plaintiff- 
 (y) but it would seem that in an action against an execu- 
 tor for debts due from him as executor, debts due to the 
 testator can not be set-off. 
 
 In an action against an executor, in his personal capac- 
 ity, debts due to him personally may be set-off, but not 
 debts due to the testator, or to him as executor. {Jz) 
 An executor, sued as such, can not set-off a debt [320] 
 due to him personall3\ (/) 
 
 Lessor or lessee. — An executor's liabilities under a 
 lease are peculiar, as he may be liable both as executor 
 and as assignee. 
 
 As executor he is, as before pointed out, liable for all 
 the promises of the deceased, and therefore, " although a 
 covenant in a lease should be of a nature to run with the 
 land, {in) so as to make the assignee of the term liable 
 for a breach of it after assignment, yet this shall not 
 discharge the lessee from a concurrent liabilit}'- on the 
 co\ enant as far as he has assets, even although the lessor 
 may have accepted the assignee as his tenant. {11) There- 
 fore, where the lessee has assigned the term in his life- 
 
 Ui) 2 Geo. II. c. 22, s. 13. 
 
 (/') Mardall v. Thellusscn, 6 E. & B. 976 (E.\. Ch.), reversing judgment of 
 the Queen's liench, 18 Q. B. 857. 
 
 { J) 2 Williams, Executors, 6th ed , 1803 ; Blakesley v. Smallwood, 8 Q. H. 
 533 ; 15 L. J. 185, Q. B. ; see Rees v. Watts, ir Ex. 410 ■ 25 L. J. 30, Ex. 
 (Ex. Ch). 
 
 (k) 2 Williams Executors, 6lii ed., 1803. 
 
 (/) Hutchinson v. Sturges, Willes, 261, 263. Compare gemrally, as to set- 
 off, 2 Williams, Executors, 6th ed.. 1803 ; Bullen, Pleadings, 3rd ed., 680. 
 
 (w) As to such covenants, see nnte. 
 
 (tt) The executor of a lessor, on the other hand, is it would seem, un<lcr the 
 statute (32 Hen. VIII. c. 34), relieved by assignment of the reversion from lia- 
 bility to he sued on covenants of the lessor which run with thr- land. Smith, 
 Landlord and Tenant. 293, n. 19.
 
 342 PARTIES TO ACTIONS. 
 
 time, the lessor may still maintain an action of covenant 
 upon an express covenant for payment of rent, ever 
 although the lessor has accepted the assignee for his ten- 
 ant, and so may the assignee of the reversion, by virtue 
 of the Statute 32 Hen. VIII. cap. 34. {0) So if the exec- 
 utor assigns the term, the lessor may afterwards bring 
 covenant against the executor, notwithstanding any 
 acceptance of the assignee as tenant, and so also may the 
 assignee of the reversion." (/) 
 
 Hence the following rules as to the liability of an ex- 
 ecutor or administrator inactions for rent. 
 
 I. An executor is liable in his representative 
 [321] character for all rent accrued due in the lifetime of 
 the testator, {q) 
 
 2. In an action of debt for rent accrued due after the 
 death of the lessee, the executor may, if he enters upon 
 the demised premises, be sued at the election of the lessor, 
 either as executor or personally as assignee, {r) And the 
 same thing holds good when the executor is sued on an 
 express covenant for rent, {s) 
 
 3. If the term was assigned by the testator, the exec 
 utor can not, of course, be sued as assignee, since the 
 term never passed to him ; but he may be sued as execu- 
 tor in debt for the rent, if the lessor has not accepted the 
 assignee as tenant, and even in this case he may be sued 
 as executor on an express covenant to pay rent. (/) 
 
 4. If the executor himself assigns the term, he is 
 chargeable as assignee for the time onl}^ during which he 
 occupied the premises ; and if he is sued for rent accrued 
 due since the assignment by himself, he is liable as execu- 
 tor only. (?/) 
 
 {o) Brett V. Cumberland, Cro. Jac. 521, 522 ; Thursby v. Plant, I Wms, 
 Saund. 241 a, n. (5). 
 
 (/) 2 Williams, Executors, 6th ed., 1616, 1617. See Hellier v. Casbard, I 
 Sid. 266 ; Coghill v. Freelove, 3 Mod. 325 ; but see 22 & 23 Vict. c. 35, s. 27. 
 
 (y) 2 Williams, Executors 6lh ed., i6ig. 
 
 {r) Ibid. As, however, to the defenses which he may raise, bue Bullen 
 Pleadings, 3rd ed., 212. 
 
 (j) Ibid. 
 
 (/) 2 Williams, Executors, 6th ed., 1624. 
 
 («) Ibid., 1624, 1625.
 
 EXECUTORS AND ADMINISl RATORS. 343 
 
 Exception.— ConirsiCls made by executor distinctly as 
 executor. 
 
 " Modern authorities have established that in several 
 instances an executor may be sued as executor on a prom- 
 ise made by him as executor, and that a declaration 
 founded on such promise will charge the defendant no 
 further than a declaration on a promise of the testator.' 
 {x) Thus he may be sued as executor for money paid 
 for him in that character, {y) and on an account stated, as 
 on a statement made by him as executor. 
 
 SUBORDINATE RULE. [322] 
 
 In an action against an executor or administrator, claims 
 made against hint in his representative character can 
 not he joined with claims made against him in his per- 
 sonal character, {z) 
 
 Counts charging the defendant as executor or adminis- 
 trator can not be joined with counts charging him per- 
 sonally in his own right, and a declaration uniting such 
 counts is bad on demurrer, {a) 
 
 The Common Law Procedure Act, 1852, s. 41, which 
 allows different kinds of action by and against the same 
 parties in the same rights to be joined, does not apply to 
 such cases, {b) 
 
 Rule 76. — All co-executors or co-administrators 
 who have administered, should be joined as defend- 
 ants in an action. 
 
 When an action is brought by executors, they must, 
 in general, all join, whether they have administered or 
 
 (;c) Ibid., 1636. 
 
 \y\ Ashby v. Asliby. 7 B. & C. 444- 
 
 («) See correspoiuiing subord'nate rule as to plaintifls, ante. 
 
 (a) Noi jan claims against aft executor as such be joined in the same count 
 with claims against him personally Kitchenman v. Skeel, 3 Ex. 49. 
 
 (/-) Davics V. Davies. I H. & C. t5i : 3i I- J- 476. Ex. ; Wiglcy T. Ashtoo. 
 ■? B. & Aid. loi ; Builen. Pleadings, 3rd ed.. 152, 154. 155-
 
 344 PARTIES TO ACTIONS. 
 
 not, (r) but the rule as to joinder is different in actions 
 against executors or administrators; lor none need be 
 joined who have not administered. 
 
 Hence, suppose X., Y., and Z. to be co-executors, and 
 an action to be brought against X. and Y., they can not 
 plead the non-jomder of Z., unless they can also plead that 
 
 he has administered, {d) 
 [323] An executor de son tort may be sued jointly 
 with a lawful executor, or they each may be sued 
 separately, but an administrator can not be sued jointly 
 with an executor de son tort, {e) 
 
 It is no reason for not joining an executor as defend- 
 ant, that he is a bankrupt. If a married woman is sued as 
 co-executrix, or co-administratrix, her husband must be 
 joined as co-defendant. (/) 
 
 Rule jj. — The heir may be sued on contracts of 
 the deceased in three cases, sc, 
 
 1. On contracts by deed in which the ancestoi 
 expressly binds himself and his heirs. 
 
 2. On contracts of record. 
 
 3. On covenants real. 
 
 Case I. — Where the ancestor expressly binds himself 
 and his heirs by a contract under seal, the heir may be 
 sued, {g) but he is not bound by the simple contracts of 
 his ancestor, nor is he bound by a bond or obligation, 
 unless he is named, {h) and it is said that he is not bound 
 unless the ancestor binds himself also : (/) an heir, more- 
 
 {c) As to the effect of non-joinder in actions on contrict, see Chapter 
 XXXIV., post. 
 
 (d) 2 Williams, Executors, 6th e<l., 1787. 
 
 {e) I Williams, Executors, 6th ed., 255. 
 
 (/) Ibid., 1787. See an^e. As to the effect of death, see Rules 44, 45, aw// 
 which apply, mutatis mutandis as well to actions against as to actions by exec- 
 utors, &c. 
 
 {g) Bacon, Abr., Heir, F. 
 
 (^) Harber v. Fox, 2 Wms. Saund. 134, 136. 
 
 (i) Ex parte Tindall, 8 Bing. 402.
 
 EXECUTORS AND ADMINISTRATORS. 345 
 
 over, is bound only provided that, and in so far as, he has 
 legal assets from his ancestor. (/) 
 
 Case 2. If an ancestor bind himself by a contract of 
 record, e. g., a judgment, statute, recognizance, &c., the 
 heir is bound. 
 
 Case 3. The heir is bound as assignee on cove- 
 nants real ; i. e., covenants which run with the land [324] 
 and descend to the heir, {k) 
 
 SUBORDINATE RULE I. 
 
 A devisee is liable under the same circumstances under which 
 the heir would be liable. 
 
 A devisee, or person to whom freehold estate is de- 
 vised by will, was not at common law liable for any con- 
 tract of the devisor. But by 11 Geo. IV. & i Will. IV. c. 
 47, ss. 2, 3, 4, a devisee is placed in the same position as 
 the heir ; i. e., the devisee is bound under the same cir- 
 cumstances, and to the same extent as the heir would 
 have been bound if the land had come to him by descent. 
 If there is an heir, the devisee is bound jointly with the 
 heir, and must be sued jointly with him. (/) If there is no 
 heir, the devisee is bound solely. (;«) 
 
 A devisee of a devisee is bound as well as the original 
 devisee. («) 
 
 SUBORDINATE RULE II. 
 
 In no case can an executor or administrator be sued together 
 with an heir or devisee. 
 
 An action can not be brought against the executor and 
 
 {j) Buckley v. Nightingale, I Str. 655. 
 {k) See anlf. 
 
 (/) Bullen, Pleading';, 3rd ed., 21, 169. 
 
 (w) Hunting v. Shel.Irake, 9 M. & W. 256. See Morley v. Morlcy, 25 L. J, 
 l.Ch. 
 
 (ft) II Geo. IV & I Will. IV. c. 47. s. 3 ; Bullen. Pleadings. 3rd cd., i6r
 
 346 PARTIES TO ACTIONS. 
 
 the heir jointly, but when each are liable, the plaintiff may 
 sue either at his choice, and may sue each at the same 
 time. When an heir is also executor, separate actions 
 may be brought against him in each capacity, {o) 
 
 (o) Chit. Pleadings 7th ed., 61.
 
 GENERAL RULES. 347 
 
 CHAPTER XIX. 
 
 ACTIONS FOR TORT. 
 PLAINTIFFS. — GENERAL RULES. 
 
 Rule 78. — No one can bring an action for any 
 injury which is not an injury to himself. 
 
 It follows from the general principles already laid 
 down {a) that no one can bring an action for any " tort" 
 or injury {b) {i. e., any interference with a right existing 
 independently of a contract), except the person whose 
 right has been interfered with: A., that is to say, can 
 never sue X. merely for an injury done to B. by X. 
 
 The rule that one person can not bring an action for 
 an interference with the rights of another, seems, -at 
 first sight, too obvious to need explanation ; but it might 
 appear, from the language in which actions are constantly 
 described, to be subject to exceptions. Thus actions are 
 spoken of as brought by masters for injuries to servants ; 
 by parents for wrongs to their children ; or, again, by 
 tenants or bailees for damage to the property of theii 
 landlords or bailors. It will, however, be found that in 
 all the cases in which A. is described as suing X. for 
 injuries to B., the real ground on which he maintains 
 an action is the invasion of some right of his own, though 
 . it may happen that the injury to A. is the result ot, or 
 closely connected with, a wrong done to B. 
 
 Master and servant. — A master often brings an [326] 
 action for what is called an injury to his servant. 
 In strictness, however, the master sues, not for the injury 
 
 (a) Rule 2, 
 
 (b) For the clifTcrcnt meanings of the term " injury," see ante.
 
 348 PART ins TO ACTIONS. 
 
 to his servant, but for tlic injury to liimself resulting from 
 damage to his servant.' 
 
 " If my servant is beat, the master shall not have an 
 action for this battery unless the battery is so great that 
 bv reason thereof he loses the service of his servant; but 
 the servant himself for every small battery shall have an 
 action, and the reason of the difference is, that the master 
 has not any damage by the personal beating of his ser- 
 vant, but by reason of [the loss of service], so that the 
 original act is not the cause of his action, but the conse- 
 quent upon it, viz., the loss of his service. . . . For 
 be the battery greater or less, if the master doth not lose 
 the service he does not have an action." (c) 
 
 Hence it does not matter, as regards the master's right 
 to sue, how the injury is caused to the person of his ser- 
 vant, v^^hether by an assault, {d') by battery, {e) by negli- 
 gence, (/") or otherwise. The loss of service is, on the 
 other hand, essential, but a service, de facto, is enough 
 to support the action, {g) The master and servj^nt have 
 each a separate right of action, the master for the loss of 
 
 service, the servant for the assault, &c. {Ji) 
 [327] Pareiit and child. — The right of a parent to sue for 
 injuries to his child is the same in principle as that ot 
 a master to sue for injuries to his servant. A parent sues 
 
 (f) Mary's case, 9 Coke, 113 a. 
 
 \d) Gilbert v. Schwenck, 14 M. & W. 488. 
 
 (<f) Mary's case, 9 Coke, 113 a. 
 
 (/) Hall V. Hollander, 4 B. & C. 660; Martinez v. Gerber, 3 M. & G. 88 
 Gough V. Bryan, 2 M. & W. 770. 
 
 {g) See Martinez v. Gerber, 3 M. & G. 88 ; 10 L. J. 314, C. P. For these 
 and other examples, see Smith, Master and Servant, 2nd ed., 96, 97. 
 
 {h) The master may have a right to sue for loss of service when no injury 
 has been done to the servant. Thus, where a servant has been enticed away 
 from, or induced to break his contract of service, by a person who knew the 
 servant to be in the employment of the plaintiff, the master can sue the person 
 enticing the servant away (Lumley v. Gye, 2 E. & B. 216 ; 22 L. J. 463, Q. B. ; 
 23 L. J. 112, Q. B. ; Hart v. Aldridge, Cowp. 54; Blake v, Lanyon, 6 T. R. 
 221 ; Smith, Master and Servant, 2nd ed., 87-89). 
 
 I. The master may maintain an Denio, 373; Ames v. Union Ry. 
 
 action for the loss of service, Co., 117 Mass. 543 ; Passenger Ry. 
 
 whether the servant be a child or Co. v. Stuller, 54 Pa. St. 378. 
 not. Wood\'ard v. Washburn, 3
 
 GENERA L R ULES. 349 
 
 not as a parent, but as a master, and the ground of the 
 action is the loss of service. He, therefore, sues for the 
 wrong, not to his child, but to himself; and can recover 
 damages only for the loss of service he has sustained, {t) 
 and not for his wounded feelings. The service is essen- 
 tial. When, therefore, the defendant drove his carriage 
 against the plaintiff's son, who was only two years and a 
 half old, and the plaintiff brought an action of trespass per 
 quod servitium amisit against the defendant, the action 
 was held not to lie, for the child was not competent to 
 perform any act of service, {k) If, however, there is a 
 capacity to serve, very slight evidence is sufficient to 
 support the allegation of service, and an action has been 
 maintained for an injury to the plaintiff's son though only 
 eight or nine years of age, without proof of actual service, 
 {/} and {m) where a capacity to serve exists, the tendency 
 of the courts is to infer service from residence with the 
 parent without proof of actual service, {n) The reason, 
 however, which used to make it desirable to sue in the 
 name of the parent (viz., that if the child was a party to 
 the action his evidence was excluded), no longer exists, {0) 
 and in cases of doubt the action should always be brought 
 in the name of the child. 
 
 As the parent and the child have each a separate right 
 of action, recovery by one is not an answer to an action 
 by the other, {p) 
 
 Seduction. — The action for seduction depends, in 
 theory, upon the existence of the relation of master [328J 
 and servant, and illustrates both the first and 
 second {q) rules laid down in this chapter ; since the 
 woman seduced can not sue, having (on the ground 
 volenti non fit injuria) suffered no legal wrong ; and the 
 
 {i) Flemington v. Smithcrs, 2 C. & P. 2g2. 
 {k) Hall V. Hollander, 4 B. & C. 660. 
 (/) Ibid. 
 
 (m) Smith, Master and Servant, 2nd ed., 97. 
 
 (n) Jones v. Brown, Peake, 233 ; Torrence v. Gibbins, 5 Q. B. 300. 
 {0) 14 & 15 Vict. c. 99, s. 2. 
 
 (/») Edmondson v. Machell, 7 T. R. 4 ; Savil v. Kirby, lo Mod. 386 ; Smith 
 Master and Servant, 2nd ed., 97, 98. 
 (y) See Rule 79.
 
 350 PARTIES TO ACTIONS. 
 
 person who can bring an action is the parent or master, 
 who sues, in theory at least, for the wrong to him, viz., 
 the loss of service. 
 
 The action, therefore, can be brought by any one who 
 stands in the relation of master to the woman seduced, 
 whether he be merely the master, (r) or the parent, 
 brother {s) or aunt (/) of the woman. It is no objection 
 that the woman was of age at the time of the seduction ; 
 and it has been held, in a case where she lived with her 
 father and acted as his servant, («) no objection to the 
 action that she was a married woman. 
 
 But, on the other hand, service of some sort is abso 
 lutely essential. If a daughter, for instance, is in the 
 actual service of another person, her father can not main- 
 tain the action, {x) In this case it would seem the master 
 might sue. Where, again, a daughter is living independ- 
 ently and supporting herself and the family, neither the 
 parent nor any one else can bring an action for her seduc- 
 tion. {}>) Thus, where a woman standing in the position 
 described was seduced, and her father brought an action 
 for the seduction, he was nonsuited on grounds which are 
 thus explained in the judgment of Erle, C. J. :■ — 
 
 " There was no evidence that the daughter was the 
 servant of the plaintiff in the sense in which the word 
 servant is used in the declaration. She was herself the 
 nead of an establishment of her own, and though she con- 
 ferred benefits on her father's family, she was not a 
 [329J subordinate member of it, and did not render to the 
 plaintiff services for the loss of which this action can 
 be maintained." {z) 
 
 Very slight evidence of service will be accepted as 
 sufficient if a daughter resides with her parents. Thus, 
 milking cows, making tea, &c., amounts to service ; {a) and, 
 
 (r) Fores v. Wilson, Peake, 55. 
 
 \s) Howard v. Crowther, 8 M. & W. 601. 
 
 (/) Edmondson v. Machell, 2 T. R. 4. 
 
 («) Hooper v. Luffkin, 7 P>. & C. 387- 
 
 {x) Dean v. Peel, 5 Ea-t, 46. 
 
 {)>) Manley v. Field, 29 L. |. 79, C. P. ; 7 C. B., N. S., 96. 
 
 (z) Manley v. Field, 29 L. j. 80, C, P., judgment of Erle, C. J 
 
 (a) Bennett-v. Alcott, 2 T. K. i63 ; Carr v. Clarke, 2 Cii. 260.
 
 GENERAL RULES. 
 
 351 
 
 indeed, it would seem that it is not necessary to prove any 
 service beyond the services implied from the daughter's 
 living in her father's house as a member of his family, {b) 
 or, in other words, that the mere fact of her living at home 
 is sufficient proof of service, {c) ' 
 
 (!>) Evans v. Walton, L. R. 2, C. P. 615. 
 
 (c) Since the action for seduction, though, in theory, brought for the loss of 
 service, is, in reality, a means of bringing an action against the seducer for the 
 seduction itself, it exhibits several peculiarities which are not strictly consistent 
 with the theory on which the action is supposed to rest. 
 
 First, — The seducer need not be shown to know of the existence of the ser- 
 vice, though such knowledge is essential to the maintenance of an ordinary 
 action brought by an employer against a person who entices away a servant 
 from his employment. 
 
 Secondly, — The slightest evidence of service is sufficient. 
 
 Thirdly, — The parent may claim damages for the injury to his feelings 
 (Dodd v. Noriis, 3 Camp. 518). 
 
 Fourthly, — The action will not lie unless pregnancy or other illness has re- 
 sulted, so as to disable the person seduced from performing her accustomed 
 duties (Eager v. Grimwood, i Exch. 61 ; 16 L. J. 236, Ex.). Yet, where no 
 illness has been produced, an action may be brought, not for the seduction 
 strictly, but for enticing away the plaintiff's daughter. No allegation is then 
 necessary, either that she was debauched, or that there was a binding contract 
 of service between her and the plaintiff (Evans v. Walton, L. R. 2, C. P. 615). 
 
 I. A woman has by statute an 
 action for her own seduction in 
 Indiana. Ind. Rev. Stat. 1881, g 
 263; Thompson v. Young, 51 Ind. 
 599 ; and infancy is no bar ; Lee v. 
 Hefley, 21 Ind. 98. But the statute 
 has no extra-territorial effect. Buck- 
 les V. Ellers, 72 Ind. 220. 
 
 Under the Michigan statute pro- 
 viding that in actions for seduction, 
 no allegations of loss of service is 
 necessary, and that if a minor the 
 action may be brought by a parent 
 or guardian, and if of full age by 
 . her father or other relative author- 
 ized by her to bring the same, it 
 was held that a woman might sue 
 for her own seduction. Watson v. 
 Watson, 49 Mich. 540 .She inay 
 sue under the statute, though it 
 authorizes certain representatives to 
 
 sue. Weiher v. Meyersham, 50 
 Mich. 602. 
 
 A woman cannot maintain an 
 action for her own seduction. Cline 
 V. Templeton, 78 Ky. 550 ; State v. 
 Pierce, 27 Conn. 319. But any one 
 who loses her services as a result 
 of the seduction, or to whom her 
 services are due at the time, may 
 maintain suit for the injury and loss 
 of service. White v. Ncllis, 31 N. 
 Y. 405 ; Bartley v. Richtmeyer, 2 
 Barb. 182; Moran v. Dawes, 4 
 Cow. 412 ; Ball v. Bruce, 21 111. 
 161. 
 
 A father may sue if the relation 
 of master and servant exist either 
 actually or constructively ; Mulve- 
 hail V. Mil ward, 11 N. Y. 343; 
 Kennedy v. Shea, no Mass. 150; 
 Wilson v. Sproul, 3 Pa. St. 46 '.
 
 352 
 
 PARTIES TO ACTIONS. 
 
 Landlord and tenant. — Actions are oiten broui^ht in 
 the name of a tenant for a trespass on the landlord's 
 estate ; or in the name of a bailee {e. g., a carrier), for 
 
 Greenwood v. Greenwood, 28 Md. 
 369; McAulay v. Birkhead, 13 
 Ired. 30; Kendrick v. McCrary, 11 
 Ga. 603; El.ington v. Ellington, 47 
 Miss. 329; Vossell v. Cole, 10 Mo. 
 634; Sover V. Dill, 3 Iowa, 330; 
 even if she is over uventy years 
 old, if she performed any service 
 however slight. Moran v. Uawes, 
 4 Cow. 412 ; Badgeley v. Decker, 
 44 Barb. 577 ; Pliipps v. Garland, 
 3 Dev, & B. 45 ; Wallace v. Clark, 
 2 Overton, 93 ; Briggs v. Evans, 5 
 Ired. 16. Or the mother may sue, if 
 the father be dead, Damon v. Moore, 
 5Lans. 454; Badgeley v. Decker, 44 
 Barb. 77 ; Gray v. Durland, 51 N. 
 Y. 424 ; even where the daughter 
 was thirty-one and the father an 
 absentee for over seven years, un- 
 heard from ; Davidson v. Abbott, 
 52 Vt. 570. Or a stepfather, if she 
 be living in his family ; Bracy v. 
 Kibbe, 31 Barb. 273; Maguinay v. 
 Saudek, 5 Sneed, 146 ; Bartley v. 
 Richtmeyer, 2 Barb. 182 ; S. C, 4 
 N. Y. 38. Or a brother, Millar v. 
 Thompson, i Wend. 447. Or a 
 cousin, Davidson v. Goodall, 18 N, 
 H.423. Or any one in loco parentis, 
 Kellar v. Donnelly, 5 Md. 211; 
 Furman v. Applegate, 3 Zab. 28 ; 
 IngersoU v. Jones, 5 Barb. 661. Or 
 a guardian, Fernsler v. Moyer, 3 
 W. & S. 416. Or a foster parent, 
 IngersoU v. Jones, 5 Barb. 661. Or 
 a putative grandfather, Monty v. 
 Gamhart, 7 Watts, 302 
 
 " Actions of this kind are founded 
 on the relation of master and ser- 
 vant. * * * The principle is 
 the same as in an action for beating 
 a servant, by means of which the 
 master lost his services. In neither 
 case does the act done to the ser- 
 vant give any right of action to the 
 master, unless it results in injury 
 to him. For the beating itself the 
 servant may sue, and so she might 
 for the debauching if it were not for 
 her consent." Bronson, C. J., in 
 Bartley v. Richtmyer, 4 N. Y. 38. 
 
 " The right of the master, as rec- 
 ognized by the law, is to have the 
 services of the servant undisturbed 
 by the wrongful act of another. 
 Whenever the wrongful act, by 
 immediate and direct consequence, 
 deprives the master of the service 
 of his servant, or injuriously affects 
 his legal right to such service, the 
 law gives a remedy." Davis, J., in 
 White V. Nellis, 31 N. Y. 405, 
 
 A parent who has had no care of 
 his child and allowed her to shift 
 for herself has no action for her se- 
 duction. Ogborn v. Francis, 44 N. 
 J. L. 441. 
 
 An action cannot be maintained 
 by the commissioi^jj|j||ipurt of a 
 county against t'-IPTceeper of the 
 poorhouse for debauching one of 
 the inmates of the poorhouse. 
 Commissioners' Court v. McCariri, 
 23 Ala. 599.
 
 GENERA L R ULES. 3 5 3 
 
 J\\\vy to the goods of the bailor. But the tenant or bailee 
 'toes not, in fact, sue for the invasion of the landlord's or 
 bailor's rights, but for an injury to himself, s.c, for an 
 invasion of his rights as possessor (though not owner) of 
 the estate, or the goods injured by the wrong-doers. 
 Actions of this kind are an illustration of the rule [330] 
 under consideration, but they are most conveniently 
 considered in reference to the following rule : 
 
 Rule 79.— The person who sustains an injury {d) 
 is the person to bring an action for the injury against 
 the wrong-doer.' 
 
 The ground of an action for tort must always be an 
 interference by a wrong-doer with some right existing 
 independently of any contract between the plaintiff and 
 the defendant, {e) or, in other words, an injury. When, 
 however, it is ascertained that an injury has been com- 
 mitted, e. g., that X. has, without any legal excuse, dam- 
 aged property which is not his own, it is often a point of 
 some nicety to decide which of several individuals is the 
 person who has a right to sue X. The principle to be 
 borne in mind is, that the person who must be made the 
 plaintiff in the action is the-person whose legal rights have 
 been invaded, who may or may not be the individual who 
 would generally be considered most interested in main- 
 
 (d) I. e., an interference with legal rights existing independently of a con- 
 tract. 
 
 {e) See a.itt. 
 
 I. In Fairmoum, &c., Ry. Co. v. held that the contract to carry safely 
 
 Stutler, 54 Pa. St, 375, a minor, was with the minor ; that the mother 
 
 having no father, but living with was a stranger to it, and she could 
 
 his mother, and by his labor con- not recover for the injury. If the 
 
 tributing to her support, was a pas- action had been by the father, who 
 
 senger on a railway car and paid was entitled to service, it might have 
 
 his fare. He was injured by the been maintained, as in the case of 
 
 negligence of the company's ser- seduction, where the injury arises 
 
 vants, and was provided with medi- from a wrong, and not as in this 
 
 cal attendance, nursed and sup- case, from a contract, 
 ported by his mother ; and it was 
 23
 
 354 PARTIES TO ACTIONS. 
 
 taining the action. The bearing ot the general rule is best 
 shown bv considering its application to the three great 
 classes of injuries; viz., injuries to person, injuries to 
 character, injuries to property. (/) 
 
 Injuries to person. — Ever}' man has a right to recover 
 damages for any injur}' done to his person, whether 
 caused bv the willful act or by the negligence of another ; 
 e. g., if A. is assaulted, falsely imprisoned, &c., by X., he 
 can recover from X. compensation both for the immediate 
 wrong and for its consequences. For the imme- 
 [331] diate wrong done to the person, e. g., for tlie mere 
 assault, no one can sue except the person assaulted ; 
 {g) but if an assault by X. upon B. indirectly damages A., 
 by depriving A. of B.'s services, A. can, as before pointed 
 out, (//) sue X. for the damage done to him. It is, however, 
 obvious that the one act, — s.c, the assault, — has given a 
 right of action to two persons, simply because the one 
 wrongful act has interfered with the separate rights of two 
 separate persons, i. e., with the right of B. not to be 
 assaulted, and with the right of A. not to be deprived of 
 the services of B. 
 
 Injuries to character. — Each person libeled or slan- 
 dered can sue for the injury done to himself; and though, 
 it is conceived cases may be imagined in which a libel dn 
 A. might cause indirectly an injury to B., for which B. 
 might perhaps sue X., the libeler, such cases raaust be 
 rare ; and as a general, if not an invariable, rule, the only 
 person who can sue for a libel or slander is the person 
 with reference to whom the libel is written or the slander 
 uttered. 
 
 (/) It may, perhaps, be worth noticing that the expression injuries to 
 person, property, &c., is an abbreviated expression for injuries to a man in re- 
 spect of his j^erson, property, &c. 
 
 {g) See Rule 78, ante. 
 
 The reader should bear in mind, throughout the chapters on actions for 
 tort, the distinction between Trespass and Case ; the one being rhe form of 
 action for direct, the other for indirect 01 consequential injury. See ante, 
 
 (h) See anle.
 
 GENERA L R ULES. 3 5 5 
 
 hijiiries to property. — These injuries consist in damage 
 either to real propert}' or to personal propert3^ 
 
 Real property. — Injuries to real property either affect 
 the immediate enjoyment of it, /. e., the possession, or, 
 more strictly, the rights arising from the possession of it, 
 or else affect the permanent or ultimate value of the prop- 
 erty, or, lastly, affect both the immediate enjoyment and 
 the permanent or ultimate value of the property. If, for 
 example, a stranger walks across land, his act of trespass 
 affects the immediate enjoyment of the land, but does not 
 affect its permanent value. If, on the other hand, he digs 
 away part of the soil, he affects, in however small a 
 degree, the permanent value of the property, and 
 at the same time interferes with the immediate en- [332] 
 joyment of it in its uninjured state, iji) 
 
 An interference with the actual enjoyment of property 
 IS an interference with the rights of the person actually 
 in possession. Any damage to the permanent value of 
 real property is an interference with the rights of the 
 owner, and, of course, may be at the same time an in- 
 vasion of the rights of the person in possession. Where 
 one and the same person is both the owner of property 
 and actually in possession of it, as where a man owns the 
 fee simple of land, in which he has granted no interest to 
 any other person, and also resides on the land, it is clear 
 that he has all the rights that can be possessed over 
 the land, and that he, and he alone, can sue for any 
 mjury to the land, of whatever description ; for he is the 
 sole person who has rights with regard to it which can be 
 invaded. But it often happens that different persons have 
 different interests in the same land. A., for example, is in 
 possession of the land as tenant for years, and has there- 
 fore a riglit to the immediate enjoyment or possession 
 of it, whilst B., his landlord, has not the possession of the 
 land, but has an interest in the permanent value of the 
 property, or, in other words, is interested as revcr- 
 
 {k) Sec, on tliis puirit, Lush, Practice, 3rd ed., 151 ; Addison, Torts, 3rd 
 ■«d., 278-280.
 
 356 PARTIES TO ACTIONS. 
 
 sioner. (/) In such a case, acts which are an injury to one 
 of the persons interested in the property may be no injury, 
 or a different injury to the other. The general rule, there- 
 fore, under consideration (;;/) gives rise to the two follow- 
 ing subordinate rules : — 
 
 [333] SUBORDINATE RULE I. 
 
 The person to sue for any interference with the immediate 
 enjoyment or posscssiojt of land or other real property 
 is the person who has possession of it, and no one can sue 
 merely for sncJi an interferetice who has not possession. 
 
 Any one, therefore, who is in possession of land, (n) 
 can sue for a trespass, i. e., an interference with his right 
 to the immediate enjoyment or undisturbed possession of 
 the property, or to use a convenient expression, can bring 
 trespass. (<?) 
 
 Every entry upon land in the occupation of another 
 constitutes a trespass, for which (in the absence of legal 
 justification) an action is maintainable. The word tres- 
 pass, further, has a wider signification in legal than in 
 popular language. " If," for example, " one man throws 
 stones, rubbish, or other materials of any kind on the land 
 of another, or allows his cattle, poultry, or domestic ani- 
 mals to go upon another's man's land, this is a trespass for 
 which he is responsible in damages unless he can show 
 that his neighbor was bound by contract or prescription 
 
 (/) The term reversioner is used aS a convenient, though not strictly correct, 
 description of any person who, not being in possession of land, has future inter- 
 est in it. 
 
 {m) Taken in combination with Rule 78. 
 
 (n) The expression "land " is used for the sake of brevity ; but it must be 
 borne in mind that " real property " includes many things — <f.^. .houses — not 
 popularly included under the word land, and that it also includes rights over 
 real property, e. g., rights of way. 
 
 {o) Trespass lies for any direct and immediate interference with the posses- 
 sion of land, and is, therefore, the form of action most frequently referred to in 
 this and the following pages with regard to the right of action possessed by the 
 person in possession of land ; but there are cases where the injury is indirect^ 
 or where, for other reasons, trespass will not lie, still the same general principle 
 applies. The person in possession must sue for interference with the right to- 
 the immediate enjoyment of property.
 
 GENERA L RULES. 357 
 
 to fence for his benefit. (/) To pour water out of a pail 
 into another man's yard, or to fix a spout, so as to dis- 
 charge water upon another man's land, or suffer filth to 
 issue through a boundary wall, and to run over another's 
 close or yard without his leave or permission, is a 
 trespass unless a right of way over the adjoining [334I 
 close, or a right to discharge water upon it, or a 
 right for the passage of waste water and refuse through 
 it, has been gained." {q) (r) So, if the occupier is turned 
 out of his dwelling-house, of which he has possession, this 
 amounts in point of law to an injury to the house, £.nd may 
 be sued for as a trespass, {s) 
 
 The owner in possession of his land may, of course, 
 bring trespass, but he sues in virtue, not of his ownership, 
 but of his possession ; and the action, therefore, may be 
 brought by a tenant in possession, though he be only a 
 tenant at will, or (though this was at one time doubted), 
 a mere tenant on sufferance. (/) Nor is it necessary that 
 the person in possession should, in order to support this 
 action against a wrong-doer, have any title to the land 
 whatever ; for actual possession as owner is presumptive 
 proof of property, and is sufficient against a mere stranger 
 who can not show any better title or authority ; {u) nor 
 can the defendant in such an action set up as against the 
 person actually in possession the right of a third party, in 
 order to rebut the mere possessory right of the plaintiff, 
 unless the defendant can show that he himself acted by 
 or under the authority of such third person, {x) If, that 
 is to say, A. is in actual possession of land on which X., a 
 stranger, with no title whatever, trespasses, X. can not 
 defend himself in an action brought by A. for the trespass, 
 
 . (/) Cox V. Burl.i.lge. 13 C. 15., N. S.. 430; 32 !-• J- 89. C. V. ; Mason v. 
 Keeling. I Ld. Raym. 60S ; Dawtry v. Huggins, Clayton, 32. 
 
 (y) Rcynolcis v. Clarke, 2 Lil. Raym. 1399. 
 
 (r) Addison. Torts, 3rd ed., 256. 
 
 (j) Merilon v. Coombes, 9 C. B. 972 ; 19 L. J. 33'i. C. P. 
 
 (() Heydcn v. Smith, 13 Coke, 67 ; White v. Bailey, 10 C. R. 227 ; 30 L. J. 
 253, C. P. ; Hacon, Abr., T'-espass, C. 3. 
 
 (m) Graham v. Peat, i Kast, 244; Purncll v. Young, 3 M. & W. 288; Browne 
 ▼, iJawson, 12 A. & K. 624. 
 
 U) Beitie V. P.caumont. 16 East, 33 Kullen, Pleadings. 3rd ed., 417.
 
 358 PARTIES TO ACIIONS. 
 
 by showino^ that some third person, M., was entitled to 
 possession, (j) The phiintiff was possessed of glebe 
 [335] land, under a lease void by the statute 13 Eliz. c. 20, 
 and it was held, {-) that he .might maintain trespass 
 against a wrong-doer, on the ground that any possession 
 is legal possession against a wrong-doer; for it is an 
 established maxim that " trespass is a possessory action, 
 founded merely on the possession, and it is not necessary 
 that the right should come in question." {a) 
 
 The occupation, moreover, of a servant or agent is the 
 possession of his master or employer, and, it would seem, 
 is not the possession of the servant. Where a servant 
 was put into occupation of a cottage, and had less wages 
 on this account, but, nevertheless, did not occupy it as a 
 tenant, it was held, that the master might bring an ac- 
 tion, treating the occupation as his own, for that " this 
 was the occupation of the plaintiff through the medium 
 of his servant, which is in law the virtual occupation of 
 the master and not of the servant." {b) 
 
 On the other hand, it is absolutely essential to the 
 maintenance of the action that the plaintiff should have 
 possession, and possession means exclusive possession, {c) 
 Hence, commissioners of sewers, who had as such com- 
 missioners erected a wall, have been held incapable of 
 suing a person who broke it down, because the authority 
 given them did not vest in them a possessory interest, {d) 
 But when contractors for making a navigable canal had, 
 with the permission of the owner of the soil, erected a 
 dam upon his close for the purpose of completing their 
 work, they were considered to have sufficient possession 
 
 ( v) Of course, if X. acted under M.'s authority, he can show this in defense ; 
 but this is, in fact, to show that X. did not commit a trespass, and is in no way 
 inconsistent with the principle that mere possession is sufficient basis on which 
 to maintain an action against a wrong-doei. 
 
 (s) Graham v. Peat, i East, 243. 
 
 {a) Lambert v. Stroother, Willes, 221 ; Asher v. Whillock, L. R. i, Q. B I 
 5, judgment of CocKBURN, C. J. 
 
 {b) Bertie v. Beaumont, 16 East, 36, judgment of Grose, J. 
 
 (O See Hill v. Tupper, 32 L. J. 217, Ex. ; 2 M. & C. 121 ; and ante. 
 
 {d ) Newcastle v. Clark, 2 Moore, 266.
 
 GENERAL RULES. 359 
 
 to enrjble them to maintain trespass against a wrong- 
 doer, {r) 
 
 " The dam," say the Court in the latter case, " was 
 erected by the plaintiffs at their own expense, and 
 with their own materials, upon the locus in quo, [336] 
 with the consent of the owner of the soil, for a 
 special purpose. Until that purpose was completed the 
 plaintiffs were entitled to the possession of the dam. Now, 
 it is perfectly clear that the person in possession of prop- 
 erty, whether rightfully or wrongfully, may maintain 
 trespass against a mere wrong-doer. Indeed, if they had 
 any other than a partial or subordinate inte]"est in the 
 dam, trespass is the only proper remedy. The case is 
 distinguishable from that of the Duke of Newcastle v. 
 Clark, (/) for there the commissioners of sewers had no 
 possession, but had a mere right to enter upon the locus 
 in quo, and to do certain acts. In Welch v. Nash, (^) the 
 posts were put upon the lands of another without his 
 permission ; and yet it was held that the party who put 
 them there might recover in trespass for taking them 
 away, where the general issue only was pleaded. Now, 
 that could be only on the ground that the posts were the 
 property of the plaintiff; for if they were not so it would 
 have been a good defense to the action." {/i) "Trespass, 
 again, will not lie for entering into a pew or seat in a 
 cliurch, because the plaintiff has not the exclusive posses- 
 sion, the possession of the church being in the parson." (i) 
 
 Mere occupation does not of itself amount to posses- 
 sion. Thus the occupation of a servant is, as before 
 noticed, not his possession, and he can not, it would seem, 
 maintain trespass ; {/e) and the following case well illus- 
 trates the difference between occupation and possession. 
 The master of a school, who had possession of the 
 
 (e) Dyson v. Collick, 5 U. & Aid. 600. 
 (/) 2 Moore, 226. 
 (^) 8 Fast, 394. 
 
 (A) I)ysv<n V. Coilick, 5 B & Aid. 602, 603, per Curiam. 
 (i) .Stocks V. Booth. I T. K. 428. 
 
 (i) Bertie v. Beaumont, 16 Kast, 33. Comjjare Wright v. Staverl, 2 E. 4 
 E. 724 29 L. J., 161 (J. \i.
 
 3C)0 PARTIHS TO ACTIONS. 
 
 scho<^l-room, on being dismissed by the trustees, gave 
 lip the room into their possession ; he afterwards re-en- 
 tered and occupied it for eleven days, at the end of which 
 
 time he was forcibly ejected by the trustees. It 
 [l2>7^ ^""'^^ l^cld that he ct)uld not maintain trespass for 
 
 being so ejected, or, in other words, that his occupa- 
 pation did not amount to ])rima facie possession as against 
 the trustees. It must be added, to explain the bearing of 
 the case, that under the pleadings the trustees relied for 
 their defense on his not being in possession of the room. 
 " Heath V. Milward," (/) sa3^s the court, "was cited in 
 support of [the] argument [for the plaintiff]. We think 
 that case well decided, and agree that the question of 
 title is not to be raised on a plea of possession ; we agree 
 also that this action is possessory, and that possession is 
 sufficient for the plaintiff in trespass against a wrong-doer. 
 But these elementary principles must be understood 
 reasonably. A mere trespasser can not, by the very act 
 of trespass, immediately and without acquiescence, give 
 himself what the law understands by possession against 
 the person whom he ejects, and drive him to produce his 
 title, if he can without delay reinstate himself in his 
 former possession. Here, by the acquiescence of the 
 plaintiff, the defendants had become peaceably and law- 
 fully possessed as against him ; he had re-entered by a 
 trespass : if they had immediately sued him for that 
 trespass, he certainly could not have made out a plea 
 denying their possession. What he could not have done 
 on the ist [of] July, he could as little have done on the 
 nth; for his tortiously being on the spot was never 
 acquiesced in for a moment ; and there was no delay in 
 disputing it. But, if he could not have denied their pos- 
 session in the action supposed, it follows clearly that they 
 might deny his in the present action, for both parties 
 could not be in possession." {m) 
 
 From the fact that trespass, or any other action for 
 interference with the immediate enjoyment of land, must 
 
 (/) 2 Bing. N. c. 98. 
 
 'm) Browne v. Dawson, 12 A. it E. 628, 629 per Lord Denman, C. J.
 
 GENERAL RULES. ^6i 
 
 be . ruught by a person who is either actually or con- 
 structively {i. e., by means of his servants or agents) in 
 possession, and that two persons can not at the 
 same time be in adverse possession, (;z) it follows [338] 
 that no one can bring an action of trespass who is 
 not in possession, or, to put the same thing in a somewhat 
 different point of view, that the mere right to possession 
 will not support an action for trespass to land. {0) " The 
 person [for example] in whom the freehold of land is, can 
 not maintain an action of trespass for an injury done to 
 the land whilst it was in the possession of another. An 
 heir-at-law may make a lease of land descended upon him 
 before he has entered thereupon ; but he can not maintain 
 an action of trespass before he has by entry acquired the 
 possession in fact [and, in like manner], a parson can not 
 maintain an action of trespass .... for an injury 
 done to his church, churchyard, or glebe, before he is in- 
 ducted, it being the induction which gives him the 
 possession in fact of these things." (/) And generally no 
 one, whatever his title or interest in land, can bring an 
 action of trespass before entry, /. ^., before he has obtained 
 possession. It can not, therefore, be maintained by a 
 person who has purchased an interest in land, nor by a 
 mortgagee not in possession, nor by a devisee, {q) a lessee, 
 (r) an assignee, {s) or an executor or administrator, (j) 
 before entry, {u) 
 
 The most important result of the principle that [339] 
 
 (m) See Browne v. Dawson, 12 A. & E. 629. The possession of land can 
 of course be vested in two or n^ore persons, e. g., as tenants in common ; but 
 there can not be two parties, each having a separate possession of the same 
 land. The trustees, for instance, and the schoolmaster, in the case of Browne 
 V. Dawson, could not each at the same time have possession of the room. 
 
 io) Compare and contrast with this the rule as to actions of trespass, •© 
 ■ goods f)r of trover. See post. 
 
 (/>) Bacon, Abr., Trespass, C. 3. See Barnctt v. Earl of Guildford, ir 
 Exch. 19 ; 24 L. \. 281, Ex. 
 
 (y; I'lowd. 142. (r) Wlieeler V. Montefiore, 2 Q. B. 133. 
 
 (s) Co^k V. Harris, i Kaym. 367. 
 
 (0 Barnetl v. Guildford, il Kxch. 32. per Parke, H. 
 
 (m) The fact that the morli^aj;ee not in possession can not brinj; trt.^pass de- 
 serves notice, since, from the rule that no.aciion can be l)r()uy;ht cxcipt for the 
 infringement of a common law right (see «///<•), it might, perhaps, bo erroneously 
 inferred that the mortgagee, who is the legal owner of ihc land, and not the
 
 362 PARTIES TO ACTIONS. 
 
 actions for interference with the use or immediate en- 
 jo)-ment of real property must be brought by the person 
 in possession, is, that when hind is in the hands of a 
 tenant, the person to sue for a trespass is the tenant, and 
 not the landlord. Thus the latter can not sue a stranger 
 tor merely entering on his land whilst in the occupation 
 of a tenant, even though the entry be made in exercise of 
 an alleged right of way. For such an act, during the 
 tenancy, is not necessarily injurious to the reversion, {x) 
 and can not be sued for by the landlord as a trespass, 
 since he is not in possession ; nor, it would seem, has he 
 the right, in the absence of any agreement, to bring an 
 action in the name of the tenant. It has further been 
 held, that where A. leased land to B., and during the con- 
 tinuance of the lease, X. committed a trespass on the land,. 
 A. could not, after resuming possession of the land, bring 
 an action against X. {y) " The act here complained of," 
 says Wilde, C. J., " was not a trespass against the plain- 
 tiff, who was not in possession at the time it was done, 
 and, in the absence of all authority, I should say that [the 
 defendant] could not be held a trespasser [against any 
 person who] came into possession after the trespass was 
 committed." (z) 
 
 [340] SUBORDINATE RULE II. 
 
 For any permanent injury to the value of land, or other reat 
 property, i. e., for any act ivhich interferes tvith the fu- 
 ture enjoyment of, or title to, the land, an action may be 
 brought by the person entitled to a future estate in it, 
 i. e., by the reversioner, {a) 
 
 mortgagor, was the right person to sue for all injuries to the land ; the .eason 
 of course, why the mort<:;agee, who is not in possession, can not bring trespass, 
 whilst the mortgagor, who is, can, is, that the action depends, not upon the own- 
 ership, but upon the possession of land, and that therefore the mortgagor, and 
 not the mortgagee, is the person by whom it can be brought. " Rut incorporeal 
 hereditaments, which do not admit of actual entry, vest immediately, and, 
 therefore, a lessee of tithes may maintain trespass for taking them away im- 
 mediately they are set out." Lush, Practice, 3rd ed., 151, citing Wentw. 290. 
 
 {x) Baxter v. Taylor, 4 B. & Ad. 72. 
 
 (y) Pilgrim v. Southampton and Dorchester Rail. Co., 18 L. J. 330, C. P. 
 
 (z) Ibid., 332, judgment of Wilde, C. J. 
 
 (a) See Lush, Practice, 3rd ed., 154.
 
 GENERAL RULES. 363 
 
 Though the person actually in possession of real prop- 
 erty can alone maintain an action for mere interferences 
 with the actual enjoyment of it, a man {e. g., a landlord) 
 who is not in possession can maintain an action for any 
 act which injures his reversionary interest in the land. 
 The landlord or reversioner must, in order to support 
 such an action, show that the injury complained of is of a 
 permanent nature, and deteriorates the marketable value 
 of the property, so that if he were to sell the land it 
 would fetch less money in the market. To put the same 
 thing in another form, the landlord or reversioner can sue 
 where the act complained of would lessen the value of the 
 property on the expiration of the tenancy or of the estate, 
 on the determination of which the land will come into his 
 possession, {b) Suppose, for example, that A. owns the 
 fee simple of certain land, and lets it to B. for twenty 
 years, he can not sue X. for any damage to the land 
 which is of a merely temporary nature, but he can sue X. 
 for any act which affects its permanent value, or, in other 
 words, lessens the worth of A.'s interest in it. Any act 
 which throws a doubt upon A.'s title is an act of this de- 
 scription. " Thus the removal of the smallest particle of 
 soil must in general be esteemed an injury to the rever- 
 sion, because it tends to alter the evidence of title," {c) 
 but a mere entry upon the land is not such an injury, {d) 
 " To entitle a reversioner to maintain [an] action, it [is] 
 necessary for him to allege and prove that the act 
 complained of was injurious to his reversionary in- [341] 
 terest, or that it should appear to be of such a per- 
 manent nature as to be necessarily injurious. A simple 
 trespass, even accompanied with a claim of right, is not 
 necessarily injurious to the reversionary estate." {£■) 
 
 It is often difficult to decide whether a gi^ -^n act is 
 or is not an injury to the reversion. Where, toi example, 
 light is obstructed, the owner can sue becau: '■ the ac» 
 
 (/>) .See Arldison. Torts, 3ifl cd., 278, 279. 
 
 (c) Alston V. Scales, q Hing. 4, per Curiam. 
 
 (rf) Haxtcr V. Taylor, 4 H. & Ad. 72. 
 
 {f) Jiaxtcr V. Taylor, 4 H. & Ad. 7O, per Pakkk, J.
 
 364 PARTfES TO ACTIONS. 
 
 may be a denial of his rioht to windows, and thus preju- 
 dice his reversionary interest ; (/) but where smoke was 
 allowed to issue from a chimney (the erection of the 
 chimney itself not bcino- a nuisance, but only the use 
 made of it), it was held that the reversioner of adjoining 
 premises had no ground of action, although his t^^nants 
 had given notice to quit in consequence, and the '^icmises 
 would, if the nuisance were continued, sell for Jess, {g) 
 "After considering the authorities," say the • -urt, " we 
 are of opinion, that since in order to give a i '.versioner 
 an action of this kind there must be some ii.jury done 
 to the inheritance, the necessity is involved oi the injury 
 being of a permanent character. The earliest instances 
 of such actions are [for] cutting trees, subverting the 
 soil, erecting a dam across a stream so as to cause it to 
 flow over the plaintiffs land. In the two former cases 
 the thing done was not removeable or remediable during 
 the term. In the third it was, but being of a permanent 
 character it was to be assumed that it would remain, and 
 therefore was treated as an injury to the inheritance. 
 The decision in Jesser v. Gifford {h) falls within the same 
 principle : a window was obstructed, the obstruction was 
 of a permanent character, and would remain unless some- 
 thing was done to remedy the evil. Tucker v. 
 [342] Newman {i) belongs to the same class. Now, the 
 building erected in this case did not injure the 
 plaintiffs inheritance, but it is said that the use made of 
 it did. The real subject-matter of complaint, therefore, is 
 not the erection of the building, but causing smoke to 
 issue from it. If the fires had not been made by the 
 defendant, he could not have been sued for an injury 
 either to the possession or the inheritance, {k) Now, 
 making the fires and causing smoke to issue was not an 
 act of a permanent nature. It is very like the case of 
 
 (/) Metropolitan Association v. Petch. 5 C. B,, N. S., 504 ; 27 L. J. 33c 
 C. P. 
 
 {g) Simpson v. Savage, i C. B., N. S., 347 , 26 L. J. 50, C. P. 
 
 {k) 4 Burr. 2141. 
 
 (t) II A. & E. 40. 
 
 \k) Rich r. Basterfield. 4 C. B. 783 ; 16 L. J. 273 C. P.
 
 GENERAL RULES. 365 
 
 Baxter v. Taylor, (/) where a person trespassed, asserting 
 a right of way, and is not distinguishable from Mumford 
 V. Oxford, &c., Railway Company, (;//) where the action 
 was brought against the defendants as occupiers of cer- 
 tain sheds, for making noises there which caiised the 
 plaintiff's tenants to give notice to quit. The real com- 
 plaint by the reversioner is, that he fears the defendant, 
 or some other occupier of the adjoining premises, will 
 continue to make fires and cause smoke to issue from the 
 chimney, and if the reversion would sell for less, that is 
 not on account of anything that has been done, but the 
 apprehension that something will be done at a future 
 time. According to the authorities we feel bound to say, 
 that this is not such an injury as will enable the rever- 
 sioner to maintain an action." {ri) In a case (<?) again 
 alluded to in the foregoing judgment, it was held that the 
 landlord of a house could not maintain an action for 
 alleged injury to his reversion by reason of the noise 
 made by the defendants hammering in the adjoining 
 premises during the tenancy, although less rent was paid 
 by the tenant in consequence of such noise. 
 
 On the other hand, an obstruction to a way may be ot 
 such a character as to be an injury to the reversion. " It 
 is not to be denied," it is said by Maule, J., " that the 
 erection of a wall across the way, — assuming, of 
 course, that there was no contract as between the [343] 
 tenant of the land and the defendant, — would be an 
 injury to the reversion, although such wall might be pulled 
 down before the plaintiff became entitled to the actual 
 possession of the land ; and I can not doubt that there 
 might be such a locking and chaining of a gate as would 
 amount to as permanent an injury to the plaintifTs rever- 
 sionary interest as the building of a wall. The meaning 
 of the allegation, that by means of the premises the plain- 
 tiff was greatly injured in his reversionary estate and inter- 
 est, is not that the injury follows as a consequence of law 
 
 (y) 4 B, & Ad. 72. 
 
 \m) I II. & N. 34 ; 25 L. J. 265 Ex. 
 
 («) Simpson v. Savnge, 26 L. J. 53, C. P., per CURIAM. 
 
 (0) Mumford v. Oxford. &c., Kail. Co., 25 L. J. 265, Ex. ; I H. & N 34,
 
 366 PARTIES TO ACTIONS. 
 
 from what is previously stated — like an allegation that J, 
 S. was seized in fee, and that he died so seized, whereby 
 J. T., his son and heir-at-law, became entitled ; but it is an 
 allegation of a matter of fact, as was lately held in this 
 court in the case of Brown v. Mallett, {p) which is for the 
 jury to find or not according to the evidence. I, there- 
 lore, think upon the whole that the declaration is suf- 
 ficient." {q) 
 
 The same act which mjures the landlord or reversioner 
 IS generally also an interference with the rights of the 
 tenant. When this is so the landlord and tenant have 
 each separate rights of action, and may be entitled to dif- 
 ferent amounts of damages. " In the case [for example] 
 of permanent injuries to buildings from trespasses, or acts 
 of negligence by strangers, the tenant is entitled to sue in 
 respect of the immediate residential injury, and the rever- 
 sioner in respect of the diminished saleable value of the 
 property, {r) Where trees have been injured by a 
 [344] stranger, the lessor and lessee may both sue in 
 respect thereof, the lessor for the damage done 
 to the body of the tree, the lessee for the loss of the shade 
 and fruit." {s) (/) AVhen an action is brought for injuries 
 of the latter kind, the damage recoverable by the rever- 
 sioner is the value of the timber and the body of the tree, 
 whilst the damage recoverable by the tenant must be 
 estimated with reference to the value of the shade and 
 fruit. (//) a value which it is obvious may fall far short of 
 the value of the tree. 
 
 Personal property. — " Personal property [by which is 
 here meant goods or things moveable] is essentially the 
 
 (/) 5C. B. 59q. 
 
 {q) Kidgill v. Moore, 9 C. B. 378, 379, per Maule, J. There are some acts, 
 such as catting down trees, which necessarily affect the interest of the rever- 
 sioner ; others, such as a mere trespass, which can not affect his interest ; and 
 others which may or may not be injuries to him. If he brings an action for 
 acts of the last kind, he must distinctly show on the face of the declaration, anc" 
 of course prove at the trial, that they are a cause of damage to him. Metropoli 
 tan Association v. Pelch, 27 L. J. 332, C. P., judgment of WiLLES J. 
 
 (r) H()^king v. Phillips, 3 Exch. 16S ; 18 L. J. i. Ex. 
 
 (j) Beddingfield v. Onslow, 3 Lev. 209. 
 
 (/) Addison, Torts, 3rd ed., 279. 
 
 («) Ibid., 302.
 
 GENERAL RULES. 3^7 
 
 subject of absolute ownership, and can not be held for 
 any estate. The property in goods can only belong to 
 and be vested in one person at one time. . . . Lands 
 may be so conveyed that several persons may possess in 
 them, at the same time, several distinct vested estates of 
 freehold, one of them being in possession, the others in 
 remainder, or the last, perhaps, being in reversion. But 
 the law knows no such thing as the remainder or rever- 
 sion of a chattel. It recognizes only the simple property 
 in goods, coupled or not with the right of immediate 
 possession." {x) 
 
 Any interference with rights over a chattel or goods 
 is an interference with the rights either of a person 
 entitled to immediate possession, or of a person entitled to 
 future possession, i. e., to possess the chattel or goods at 
 some future time, or with the rights of both persons. A., 
 for example, is owner of a horse, and lets it for a month 
 to B. If X. merely takes it away from B. during the 
 month, he interferes with B.'s right to the immediate pos- 
 session. If X. permanently injures the animal, he inter- 
 feres with A.'s right to possess it undamaired at the 
 end of this month, i. e., with A.'s right to future pos- [345] 
 session, or, as it may be conveniently (though not 
 quite accurately) termed, A.'s reversionary interest in the 
 chattel, {y) X.'s act is, moreover, in this case, an interfer- 
 ence as well with B.'s right to immediate possession, as 
 with A.'s reversionary interest, or right to future posses- 
 sion, {z) 
 
 {x) Williams, Personal Property, 7ih ed.. ch. ii. See the whole of this 
 chapter for the view taken throughout this and the following pages with refer- 
 ence to actions for injuries to personal property. 
 
 {y) This expression as applied to goods is, though not strictly accurate, con- 
 venient, and sanctioned hy good authorities (Bulien, Ple.ulings, 3rd cd., 395 ; 
 •Mcars v. London and South-Western Rail. Co., 11 c:. P., N. S., 850 ; 31 L. J. 
 220. C. 1'.). 
 
 (s» The terms, right of possession, right to possess, right to po38 'ssion, arc, 
 in conformity with general usage, used as synonymous. Strictly speaking, a 
 ri'^ht of possession is any right which ari.ses from the fact of possession. A 
 right to possession is the right to possess, which may, no doubt, arise from po:*- 
 session, hut may also arise from other circumstance-. It need, perhaps, scarcely 
 be noted that the right to possess a ch.ittel, ci;hcr immediately or at some 
 future time, includes in it tV r right to possess it uninjured.
 
 368 PARTIES TO ACTIONS. 
 
 The general rule under ccmsideration gives rise, wheu 
 applied to personal property or goods, to the two follow- 
 ing subordinate rules : — 
 
 SUBORDINATE RULE III. 
 
 ^ I ny person may sue for an interference with the possession 
 of goods, who, as against the defendant, has a right to 
 the immediate possession of such goods ; and no person 
 can sue for what is merely such an interference tvho has 
 not a right to the immediate possession of the goods. 
 
 A wrong-doer may interfere with another person's 
 right to undisturbed possession of goods in various ways. 
 X., for example, strikes A.'s horse, or removes it out of a 
 field in which it is placed, X., in this case, commits a 
 trespass. X., again, borrows the horse from A., and 
 refuses to give it back on demand. He is then gudty of 
 a wrongful detainer, and liable to an action of detinue. X. 
 takes the horse and sells it. In this case he corr'tnits an 
 act of what is technically called conversion, which 
 [346] may be defined as " a wrongful interference with 
 goods by taking, using, or destrojnng them incon- 
 sistent with the owner's or other persons right of immedi- 
 ate possession," {a) and is liable to an action of trover. 
 In each instance the wrong-doer is guilty of an interfer- 
 ence with another person's right of possession, {b) and in 
 determining who is the person who ought to sue for such 
 an interference, it is unnecessary to enter into the subtle 
 distinctions between trespass to goods and trover or 
 between trover and detinue, {c) The plaintiff has often a 
 choice as to which of these actions he will bring. They 
 are all brought for interferences with his right to immedi- 
 
 (tf) Compare Bullen, Pleadings, 3rd ed., 290; Burroughcs v. Bayne, 5 H. 
 & N. 296 ; 29 L. J. 185, Ex. : Pillot v. Wilkinson, 2 H. & C. 72 ; 32 L. J. 201, 
 Ex. ; 3 H. & C. 345 ; 34 L. J. 22, Ex. (Ex. Ch.). 
 
 (3y Compare Fouldes v. Willougliby, 8 M. & W. 540 ; Leame v. Bray, 3 
 East, 593 ; Aldison, Torts, 3rd ed. 307-310. 
 
 {c) Compare Selwyn, N. P., 13th ed., 581, 1276 ; Burroughes v. Bayne, 5 11, 
 & N. 2q6.
 
 GENERAL RULES. 369 
 
 ate possession, or are, in other words, possessory actions, 
 and indeed, " there is no action in the law of England by 
 which property in goods or land [as distinguished from 
 the right to possession, either immediate or future] is 
 alone decided." {d') 
 
 Trover, as being the main action for injuries to goods, 
 is that chiefly referred to in the following pages. 
 
 The right to bring trover or trespass is often said to 
 depend upon the plaintiff's property in the goods. Thus, 
 it is laid down, that "the plaintiff must not only have a 
 right of property, but a right of possession also, and unless 
 both these rights concur, the action will not lie," ie) or in 
 somewhat different language, that the plaintiff in trover 
 must either have possession or a general or special 
 property. (/) 
 
 These and similar statements, though accurate in the 
 sense in which they are employed, may suggest 
 that the right to maintain trover, which is merely a [347] 
 possessory action, depends, not upon the right of 
 possession, which is the right violated, but upon the right 
 of property or ownership. The following is, it is sub- 
 mitted, the simplest account of the ground on which the 
 plaintiff's right to sue rests : " The property in the goods 
 is that which most usually draws to it the right of pos- 
 session, and the right to maintain an action of trover is, 
 therefore, often said to depend on the pla,intiff 's property 
 \\\ the goods. The right of immediate possession is also 
 sometimes called itself a special kind of property, {g) but 
 these expressions should not mislead the student. The 
 action of trover tries only the right to the immediate pos 
 session, which . . . may exist apart from the prop- 
 erty in the goods," or, in other words, the ownership of 
 them. {Ji) 
 
 The essential pomt being the existence on the part of 
 
 (d^ Williams, Personal Property, 7th ed., 26. 
 
 (e\ Selwyn, N. P., 13th ed., 1288. Compare Wiihraliam v. Snow. 2 Wms, 
 Saund. 47 e, 47 jj. 
 
 (/) See Addison v. Round, 4 A. & E. 804, judgment of Coi.KRiDGE, J. 
 Xg) R<ig©rs V. Kennay, 9 Q. B. 592 ; 15 L. J. 381, (^. H. 
 (A) Wiiiiains, P(!r-,<m.d Proiicrly, 5tli ed., 2";. 
 ■'I
 
 j70 PARTIES TO ACTIONS. 
 
 the plaintiff in trover of a right as against the defendant, 
 to the immediate possession of goods, that action or 
 trespass may, according to circumstances, be brought by 
 the owner, the bailee, or the mere possessor, without title 
 of specific goods. 
 
 T/ie owner. — Where A., the owner of a chattel, e. g., 
 a watch, has retained all rights of property in it, and 
 amongst others, the right to the immediate possession of 
 it, he may maintain trover or trespass, according to the 
 nature of the wrong done, against any person who takes 
 it, or keeps it out of his possession, or otherwise inter- 
 feres with his right to possess it uninjured. (?) As long 
 as the watch is in A.'s own possession, there can be no 
 doubt as to his right to sue any one who takes it away. 
 But actual possession is not necessary to support this 
 action. The right of possession is sufficient. A., for 
 example, loses his watch. He is still owner of it, and his 
 ownership entitles him to possess the watch when- 
 [348] ever he can meet with it. In legal phraseology, the 
 property in the watch " draws with it the right of 
 possession," and this mere right to possess enable? the 
 owner to sue any person who, having the watch, refuses 
 to give it up to him. (/) Suppose, again, A. lends the 
 watch to a friend, B. ; he thereby parts with Di't posses- 
 sion, but he does not part with the ownership, which 
 includes the right to possession. If, therefore, li. converts 
 the watch, A. may sue him. 
 
 A. purchases specific goods. From the /loment that 
 the ownership of them has actually passed to h;m, although 
 he has never had actual possession of ifhem, he may 
 bring an action against X., who converts i.Ucra, {in) Thus, 
 
 {i) For a contrast between absolute property Of ownership and special 
 property, see Webb v. Fox, 7 T. R. 391, 398. 
 
 (/) Williams, Personal Property, 7th ed., p. 2/., Y/ilbraham v Snow. 2 
 Wms. Saund. 47 a ; Manders v. Williams. 18 L. J. c'.?. 439. Ex. ; 4 H. & N. 
 
 339- 
 
 (w) Wilbraham v. Snow, 2 Wms. Saund. 47 b. ''t)atra:;t Ibis with the posi- 
 tion of the purchaser of land, who can not bring frripass before entry. The 
 distinction is, that the action for trespass to land dejjends upon possession ; 
 the action of trover or of trespass to goods, upon foe right of possession. Se« 
 ante.
 
 GENERAL RULES. 37' 
 
 'if specific goods are sold on credit, and nothing is 
 agreed upon as to the time of delivering the goods, the 
 vendee is immediately entitled to the possession, and the 
 right to possession and the right of property [i. e., the 
 ownership] vest in him at once." {n) " He who has an 
 absolute or general property [i. e., is owner] may support 
 this action, although he never had the actual possession ; 
 for it is a rule of law, that the property of personal chat- 
 tels draws with it the possession, {o) so that the owner 
 may bring either trespass or trover at his election agair.st 
 the stranger who takes them away. So, where a man 
 has wreck by prescription or grant, and another takes it 
 away, he may bring trover or trespass before seizure. 
 .... Also, where A. is indebted to [B.] and [X.] to 
 A., and it is agreed between them that [X.] shall give 
 goods in his possession, which were the goods of 
 A., to [B.], in satisfaction of A.'s debt, if [X] con- [349] 
 verts them, [B.] may maintain trover against him, 
 although he never had possession ; for by agreement, the 
 right of property was in him, and the conversion is a 
 wrong to him. So, where an executor declares upon the 
 possession of his testator, and a conversion by the defend- 
 ant after death, it is held to be sufficient, because the 
 property is vested in the executor, and that draws after it 
 the possession of law " {p) {i. e., the right to possess). 
 
 The owner of goods can generally bring trover, because 
 ownership primk facie and usually includes the right to 
 possess, although the owner may divest himself of this 
 right if he pleases ; in which case he loses the right to 
 bring trover. Since A.'s right to possess goods may 
 depend wholly upon his being their owner, the question 
 whether a person can bring trover often resot'ves itselt 
 into the inquiry, whether he has become owner of the 
 property in certain goods, or, to employ a technical expres- 
 sion, whether the property in the goods has passed to 
 
 (w) 2 Sclwyi), N. P., 13th ed., 12S8 ; Hloxam v. Sanders, 4 H. & C. 941. 
 (0) All that is meant by this technical expression is that ownersUp inclndes, 
 Amongst other rifjlils, the right to possess the projierty owned. 
 (/) Willjrahani v. Snow, 2 Wms. Saund. 47 a, 47 b.
 
 372 PARTIES TO ACTIONS. 
 
 him ? A., for instance, orders goods of X. If they arc 
 actually dehvercd to A., there is generally little doubt 
 that the property has passed to him, i. e., that the goods 
 have become A.'s goods, and that A. can sue X., or any 
 other person who keeps the goods out of his possession, 
 and this, although X. ma}' have a cross-action against A. 
 for the price of the goods. Suppose, however, that A. 
 orders goods which are not delivered to him. It then 
 becomes a matter of considerable difficulty to determine 
 whether the propert}' in the goods has passed to A. The 
 determination of this question, which lies beyond the scope 
 of the present treatise, depends partly on matters of fact, 
 partly on rules of law. It must, however, be determined, 
 in order to settle whether A. can bring trover against X. 
 who keeps the goods from him. If the property in the 
 goods has passed, A. has, as being owner, the right to 
 possess them, and can, therefore, sue X. in trover. 
 [350] If the property in the goods has not passed, A. has 
 not that right of possession, which is necessary to 
 support an action of trover, {g) So, again, if the question 
 be whether a donee {i. e., a person to whom goods have been 
 given) can bring trover against a person who retains them, 
 it is necessary to determine whether the gift was of a kind 
 to pass the property in the goods, since otherwise the 
 donee has no right to possess them, and therefore no right 
 to maintain an action for an interference with the right of 
 possession. If the gift has been a merely verbal one, the 
 donee can not sue, for, " by the law of England, in order 
 to transfer property by gift, there must be a deed or 
 instrument of gift, for there must be an actual delivery of 
 the thing to the donee." (r) 
 
 The question of ownership may again arise when the 
 matter to be decided is, not whether trover can be brought, 
 
 {g) As to the question when the property in goods sold passes, see Benjamin, 
 Sale, pp. 213-290. 
 
 (r) Irons v. Smallpiece, 2 B. & Aid. 551 ; Bunn v. Markhain, 7 Taunt. 224 ; 
 "Wilbraham v. Snow, 2 Wms. Saund. 47 b ; Bourne v. Fosbrooke 3 L. J. 164 
 C. P. ; 18 C. B., N. S., 515. For further examples of the relation between the 
 right to own property and to bring trover, see Addison, Torts, 3rd ed. 323 
 324
 
 GENERAL RULES. 373 
 
 but which of two persons ought to bring it. A chi d, for 
 instance, is deprived of personal goods, e. g., a watch : is 
 he or his parent the right person to sue the wrong-doer? 
 The answer is, that property in the hands of very young 
 children is in the constructive possession of the father and 
 master of the house ; but goods, e. g., watches or books, 
 given to a schoolboy or apprentice, and taken away from 
 home, are the property of the boy ; and if they are con- 
 verted by a wrong-doer, the boy, not the parent, should 
 sue for tiie injury, {s) 
 
 A. sends goods to B. by a carrier, X., who converts 
 them ; the question is, should A. or B. sue X., who can 
 undoubtedly be sued by one or the other. The answer is, 
 that he must sue X., who, having the property in 
 the goods, has the right to possess them. "If a trades- [351] 
 man " [the purchaser] " order goods to be sent by a 
 carrier, though he does not name any particular carrier, 
 such delivery operates as a delivery to the purchaser, 
 and the whole property is immediately vested in him; 
 and if any accident should happen to the goods, it will be 
 at the risk of the purchaser; (/) a fortiori, therefore, if the ^ 
 purchaser select a particular carrier, {ii) This is on the 
 ground that a delivery to the vendee's agent is a delivery 
 to the vendee. But where the contract is imperfect, e. g., 
 invalid by the Statute of Frauds, {x) or the goods are sent 
 by a conveyance not authorized by the vendee, or not 
 authorized to be sent at all, or the vendee retains an 
 option to refuse the goods, the property, until acceptance, 
 remains in the vendor, and the vendee can not maintain 
 trover, {y) If A. order a tradesman to send him goods 
 by a hoy man, and the trades nan send the goods by a 
 porter to the house where the hoyman resides when in 
 to>vn, and tlie porter, not finding him, leave the goods 
 with the landlord, A. can not maintain trover against the 
 landlord, for the property never vested in A., but 
 
 (s) Hunter V. Wc-ill)P>ok. 2 C. \\ 578 ; AiUlisoii, Toils, 311! cd.. 3^8. 
 
 (I) Dutton V. Solomonson, 3 H. & 1'. 582. 
 
 (m) Dawes v. Peck. 8 T. R. 330. See Diinlop v. lamherl, 6 CI. & F. 627, 
 
 (jr) Coats V. Chaplin, 3 Q. IJ. 483 
 
 \ y) Swain v. Shq^hcrcl. t M. & Rob. 223 ; Fn-- nm v 111., li 3 Q. H. 492.
 
 374 PARTIES TO ACTIONS. 
 
 remained in the tradesman ; {z) but if the person to whom 
 the goods were delivered had been a servant to the hoy- 
 man, and entrusted by him to receive the goods, A. 
 might have maintained trover; for by such delivery the 
 property would have vested in hirn, and therefore, in such 
 case, the tradesman could not have brought trover against 
 the hoyman." {a) {b) 
 
 In the foregoing instances, and others of the same sort, 
 the power to bring trover depends, no doubt, in one 
 [352] sense, upon the right of property or ownership. 
 The reason of this is, that the right to possess 
 goods depends, in many cases, upon the right to own 
 them ; but trover can often be supported by persons who 
 are not the owners of property. 
 
 Bailees. — A bailment has been defined " a delivery ot 
 goods for some purpose, upon a contract express or 
 implied, that, after the purpose has been fulfilled, they shall 
 be re-delivered to the bailor, or otherwise dealt with, 
 according to his directions, or, as the case may be, kept till 
 he reclaims them." {c) The person who delivers the 
 goods is the bailor; the person who receives them is the 
 bailee. From the definition of a bailment it is clear that 
 bailees may be of various descriptions, and possess differ- 
 ent rights over the property placed in their hands. Thus, 
 a hirer to whom goods are let, a pawnbroker to whom 
 they are pledged, a workman who has a lien upon them, 
 or a friend to whom they are lent, and others, are all ot 
 them bailees, and have, in many respects, different rights. 
 The point to be noticed is the right which they have in 
 common, i. e., the right to the possession of the goods 
 confided to them, for an interference with which they can 
 maintain trover. 
 
 " It is, moreover, a doctrine universally applicable to 
 bailment, that there is a special qualified property trans- 
 ferred from the bailor to the bailee, together with the 
 possession. It is not an absolute property, because of his 
 
 {2) Colston V. Woolaston, Bull, N. P., 35. 
 ,'a) See Staples v. Alden, 2 Mod. 309. 
 {b) Selwyn, N. P., 13th ed., 12S0, 1281. 
 {c) 2 Steph., Com., 6th ed.. 80.
 
 GENERAL RULES. 375 
 
 contract for restitution, the bailor having still left to him 
 the right to a chose in action, grounded upon such con- 
 tract, {d) And on account of this qualified property of 
 the bailee, he may, as well as the bailor, maintain an 
 action against such as injure or take away the chattels. The 
 tailor, the carrier, the innkeeper, the agisting farmer, the 
 pawnbroker, the borrower, the hirer, or any other bailee, 
 may respectively vindicate, in their own right, this their 
 possessory interest, against any stranger or third 
 person; for the bailee being responsible to the [353] 
 bailor, if the goods be lost or damaged by negli- 
 gence, or if he do not deliver them up on lawful demand, 
 it is therefore reasonable that he should have a right of 
 action against all other persons who may injure them or 
 take them away, so that he may always be ready to answer 
 the call of the bailor." (,?) 
 
 " A carrier," it is laid down by another writer, " may 
 maintain trover against a stranger who takes the goods 
 out of his possession ; so may a factor, or other consignee, 
 or pawnee, or trustee ; so, if a house be blown down, and 
 a stranger take away the timber, the lessee for life may 
 bring trover, for he has a special property to make use ^f 
 it for the purpose of rebuilding although the genera! 
 property is in the owner. . . . So if a man lend his 
 cattle to A. to plough his land, and a stranger takes theqi 
 away, A. may maintain trover or trespass against him. 
 The agister of cattle may also maintain trover against a 
 stranger who takes them away. . . . So, the master 
 of a fly-boat, who is hired by a canal comjxany at weekly 
 wages, may maintain trespass for cutting a rope fastened 
 to the vessel, whereby it was being towed along, although 
 the vessel and the rope were the property of the company 
 (/) So he who has a right to the possession of goods in 
 respect of a lien, may bring trover for the conversion of 
 the n." ig) {h) Nor need the bailee have actual pl.).-;J.'a 
 
 (d) Donald v. Suckling. I- K. l. Q- i5- S^^S. 6l8. 
 {e) 2 Sti'ph. Com , 6th ed., 83. 
 (/) Moore v. Kobinson,2 H. & Ad. 817. 
 • (.f ) ••CKK V. Evan'^. 6 M. \ W. 36. 
 {h) Wilbrahani v. Snow, 2 Wins. Saund. .}7 d, A^ •
 
 376 PARTIES TO ACTIONS. 
 
 possession, if he lias a n<;ht to the possession ; for " a per- 
 son who has only a special [)ropcrty may, in some cases, 
 maintain trover, although he has never had actual posses- 
 sion. Thus a factor, to whom goods had been consigned, 
 but which he had never received, may bring this 
 
 action." (/) {k) 
 [354] Merc possessors. — A person who has the actual 
 
 possession of goods has a right to possess them 
 against anv one who can not show a better title, or, what 
 is the same thing, who can not show that in interfering with 
 possession of the goods, he is acting under the authority 
 of some one who has a better title than the possessor. (/) 
 Rights of action of this sort are given in respect of the 
 immeJiate and present violation o^ the possession ot 
 the plaintiff, independently of his right of property, and 
 are an extcnsi(jn of the protection which the law throws 
 round his i)erson. {in) The owner of furniture lent it to 
 A., under a written agreement. A. placed it in the house 
 of jNI., a bankrupt, and X., M.'s assignee, seized it: A. was 
 held entitled to maintain trover against X. without pro- 
 ducing the written agreement, («) i. e., without showing 
 hts title to or right of property in the furniture. So A., 
 the plaintiff, bought a vessel which was stranded, but she 
 was not conveyed to him according to the provisions of 
 the Register Acts. Me took possession of her, and for 
 some days endeavored to save her, but afterwards she 
 went to pieces, and parts of the wreck drifted upon X., the 
 defendant's land, and were by him cut up and carted away. 
 An action of trover was held maintainable {p) by A. against 
 X. The lessees of a mine brought trover tor the ore, and 
 
 (/) Fowler v. Down, i B. & F. 44. 
 
 (/(') Wilbrah.-im v. Snow, 2 Wms. Saund. 47 g. A bailee who has the right 
 to immediate possession can maintain trover even against a bailor M'ho has 
 not such a right (Milgate v. Kebble. 3 M. & G. 100 : Richards v. Symonds, 8 Q. 
 IJ. 90). X. lets a horse for a month to A., and during that month takes it 
 away: A. can sue X. (Lancashire Wagon Co. v. Fitzhugh, 5 H. & N. 502 ; 30 
 L. J. 231, Ex.). 
 
 (/) Armory v. Delamirie, I .Str. 504 ; i Smith, L. C, 6th ed., 315 ; Jeffries 
 V. Great W\-stern Rail. Co., 5 E. cS: B. 802 ; 26 L. J. 109, Q. B. 
 
 (nt) Rogers v. Spence, 13 M. & W. 571, 581 
 
 {«) Burton v. Hughes, 2 Bing. 173. ■> 
 
 (p) Sutton V. Buck. 2 Taunt. 302.
 
 GENERAL RULES. m 
 
 it was held that on a plea of not possessed, it was suf- 
 ficient for them to prove their occupation of the mine from 
 which the ore was dug, without showing any title in 
 their lessors. (/) A person, again, who has absolutely no 
 title at all as against the owner {e. g., the finder 
 of goods which are lost), may have a right of posses- [355] 
 sion against every one else. There may be a 
 special property {q) arising simply out of a not unlawful 
 possession, which ceases when the true owner appears, (r) 
 A., the plaintiff, a chimney-sweeper's boy, found a jewel, 
 and carried it to the shop of X., the defendant, a gold- 
 smith, to know what it was, and delivered it into the 
 hands of his apprentice, who, under pretense of weighing 
 it, took out the stones and called to the master to let him 
 know that it came to three halfpence. The master offered 
 the money to the boy, who refused to take it, and insisted 
 upon having the thing back again, whereupon the appren- 
 tice delivered him back the socket without the stones. 
 It was held that A. could maintain an action of trover 
 against the goldsmith, and it was laid down " that the 
 finder of a jewel, though he does not by such finding 
 acquire an absolute property or ownership, yet he has 
 such a property as will enable him to keep it against all 
 but the rightful owner, and consequently may maintain 
 trover." (5) A., on entering a shop, found on the floor a 
 bundle of notes, which had been accidentally dropped 
 there by M., a stranger. A. handed it at once to X., the 
 owner of the shop, with a view to its being restored to M. 
 if he should return. X. advertised the finding in the 
 newspapers, and M., the true owner, could not be found. 
 A., not having intended to waive his title, offered to repay 
 the expenses of the advertisements, and to indemnify X. 
 against any claim, and demanded the notes back ; and on 
 X.'s refusal to give them back, sued X. A., tiic finder, 
 was held entitled to recover. (/) 
 
 (/) Taylor v. Parry, I M. & CJ. 604. Sec 2 Wms, Saund. 47 g, note (w) 
 
 (q) /. ^., a sort of temporary or provisional owncrsliip. 
 
 (r) Wilbrah^m v. Snow, 2 Wms. Saund. 47 j. 
 
 (j) Armory v. Delamirie, I Str. 504 ; l Smith, L. C. 6th cd., 315. 
 
 (/) Bridges v. Ilawkesworlh. 21 !.. J. 75. Q- ''• l''^-" '>i>dcr must, in order
 
 57S /\IKT//-S TO ACTIONS. 
 
 [356J If X., a wrong-doer, converts goods in tiie 
 possession of A,, he can not set up as a defense 
 against A.'s right the mere title of a third party, («) or, 
 as it is called, the jus tertii. If, that is to say, A. is in 
 possession of goods which X. takes, he can not defend 
 himself in an action by A., by showing that a third party, 
 M., was really entitled to the possession of the goods, 
 unless he can show that he took the goods by the author- 
 ity of M. ; i. e., that he was not a wrong-doer. Where X. 
 took the wagons of A. and B., and attempted, in answer 
 to an action by them, to set up the title of a third party,. 
 M., the law was thus stated by Lord Campbell, C. J.: — 
 " The jus tertii could not be set up. . . . The law 
 is, that if a person is peaceably and quietly in possession 
 of a chattel as his own property, a person who takes il 
 from him having no good title is a wrong-doer, and such 
 person can not defend himself by showing that the chattel 
 is not the property of the plaintiff, but the property of a 
 
 third person There is no difference whatever 
 
 for this purpose between an action of trespass and an 
 action of trover. In both cases the plaintiff rests on his 
 possession of the property, and the question is, whether a 
 person who has no title whatever of his own shall be 
 allowed to show that the plaintiff has not the right of 
 property [i. e., right to possession]. The right of prop- 
 erty is presumed from the possession; and is that pre- 
 sumption to be rebutted by evidence on the part of the 
 defendant, a mere stranger and wrong-doer, showing that 
 the plaintiff was not the real owner of the property ? 1 
 am of opinion that that can not be done." [x) 
 
 to support an action of trover, be a real finder, and not a person who has taken 
 possession of goods not in reality lost. A porter, for instance, who discovers 
 luggage in a railway carriage, has been held not to be a finder (R. v. Pierce, 6 
 Cox, C. C. 107. Compare Merry v. Green, 7 M. & W. 623 ; R. v. Thomas, 33 
 L. J. 22, M. C). Perhaps, too, he ought to be an innocent finder, and not one 
 who becomes possessed of goods feloniously or fraudulently. But it rather 
 seems that a possessor, even of this description, might sue a wrong-doer who 
 took the goods from his possession (see Buckley v. Grose, 32 L. J. 131, Q. B., 
 judgment of Crompton, J.). 
 
 (m) See ante, 
 
 {x) Jeffries v. Great Western Rail. Co., 25 L. J. 109, no, Q. B., judg- 
 ment of Campbell. C. J.
 
 GENERAL RULES. i7(y 
 
 Where, indeed, the plaintiff rehes, not upon his [357] 
 actual possession at the time of the conversion, but 
 upon his right to possession, the defendant may set up a 
 \us tertii, but this is not really setting up against the 
 plaintiff's right to possession the superior right of a third 
 person, but amounts to showing that the plaintiff had no 
 right to possession at all. A., for example, bought goods 
 of M., and allowed M. to remain in possession of them for 
 some years. M. then became bankrupt, and M.'s assignees 
 made no claim, and M. retained possession of the goods 
 for some years longer, when X., the sheriff, seized them 
 under a fi. fa. against M., and sold them. After the sale, 
 the assignees gave notice of their claim, and the sheriff, 
 X., paid over the proceeds of the sale to them. It was 
 held in an action by A. against X., that X. might set up 
 the title of the assignees, {y) A. had obtained possession 
 of spme tallow, part of the salvage from a fire, and his 
 possessory right had been lawfully divested ; he was held 
 not entitled to maintain trover against X., who had subse- 
 quently purchased it. {s) In the last case there was, indeed, 
 no jus tertii set up, yet both it, and in cases in which it is 
 allowable to set up a third person's right against a claim 
 arising from possession, rest, it is submitted, on the same 
 principle. If the plaintiff alleges that he had a right to 
 possession, it is allowable, either by setting up the jus 
 tertii, or by any other means, to show that at the time of 
 the conversion he had no right to possession whatever. 
 If, on the other hand, he shows that he had actual posses- 
 sion at the time of the act complained of, then his right to 
 possession is indubitable, and it is no answer to show the 
 superior right or title of another party, (a) 
 
 Custody of servants. — Goods in the custody of a [358] 
 mere servant arc not in the posscssicju of the 
 servant, but in the possession of the master. A servant, 
 
 {y) Leake V. I.oveday, 4 M. & G. 972 
 
 (2) Buckley V. Grose, 3 U. & S. 566 ; 32 I>. J. 129, Q. B. 
 
 (a) Compare Jeffries v. Great Western Rail. Co., 25 I.. J. IIO, Q. B., judg- 
 ment of WioiiTMAN, J. Sec both as to the rules with reference to .sctiiiij; up the 
 jus tertii and as to the connection belween the rij^iit of ownership and the right 
 to bring trover Bourn-- v I'o^l.ro.L:-, 34 L. J. I'i4. '' P. ; 18 C. B , N. S., 51 j
 
 38o PARTIES TO ACTIONS. 
 
 that is to say, is not a bailee, {b) Hence, a mere servant 
 who has the custody of goods can not (it would seem) 
 bring trover, for he has not any possession such as to give 
 him the right of possession. " You can not make my ser- 
 vant whose possession is my possession, my bailee. He 
 is not liable as a bailee. When goods are delivered to 
 another as a bailee, the special property passes to him, 
 but here it does not." {c) 
 
 Where either the bailee or bailor may bring trover. — 
 Suppose that while A.'s watch is in the hands of B., a 
 bailee, it is converted by X., which of them can sue X.? 
 The answer depends upon the nature of the bailment. If 
 it is what is called a simple bailment, as where goods are 
 lent to a friend, entrusted to a carrier, &c., that is bailment 
 which does not confer on the bailee a right to exclude the 
 bailor from possession ; either A. or B. may maintain trover 
 against X. id) The bailee may maintain this action, 
 because the action depends on the right to the possession 
 which he has by virtue of the bailment made to him, {e) 
 and the bailor may also maintain it, because, as owner 
 of the goods, he has the right of possession, and the 
 I J59] bailment is not of such a nature as to vest this right 
 in the bailee solely. (/) 
 
 The recovery of damages, either by the bailor 
 
 (U) See R. v. Hey, 2 C. & K. 983 ; R. v. Gibbs, i Dears. C. C. 445, and 
 •ther cases on larceny ; Smith, Master and Servant, 2nd ed., 284-313 ; and see 
 Hopkinson v. Gibson, 2 Smith, 202, 204, 205. 
 
 (c) Hopkinson v. Gibson, 2 Smith, 202, 204, 205, per Ellenborough, C. J. 
 It is important to note exactly the difference between a mere servant and a 
 bailee. If A. gives goods to B., e. g., a carrier, A. retains the right to possess 
 the goods, but he passes the possession itself to B. If, on the other hand B. is 
 not a carrier, but a mere servant, A., though he may give the custody or deten- 
 tion of the goods to B., does not pass to him the possession of them. Hence 
 B.. the bailee, has, as against third parties, a right to possession, and can bring 
 trover ; but B., the servant, having no possession, has no right to possession, 
 and can not bring trover. It is conceived that if B. should be in any way 
 acting, not only as a servant, but also as a bailee, he might bring an action for 
 the conversion of the goods. 
 
 (d) NichoUs V. Bastard, 2 C. M. & R. 659 ; Manders v. Williams, 4 Ex. 
 339 ; 18 L. J. 437, Ex. 
 
 (e) Sutton V. Buck, 2 Taunt. 302. 
 
 (/) Williams, Personal Property, 7th ed., 27, 28 ; Wilbraham v. Snow 
 Wms. Saund. 47 c-47 e.
 
 GENERAL RULES. 381 
 
 oi ~t>y tno oailee, deprives the other of his right of ac- 
 tio.*, (j) 
 
 By the recovery, moreover, of a judgment in an action 
 for the conversion of goods, the plaintiff's right of prop- 
 ert}- is barred, and the propert}- vests in the defendant 
 from the date of the conversion, {h) 
 
 The bailment ma}', on the other hand, not be a simple 
 bailment. It ma}' be one which gives the bailee a right 
 to possess the goods against all the world, including the 
 owner. In this case trover must, during the continuance 
 of the bailment, be brovjght by the bailee, and not by the 
 bailor, who has parted with the right to immediate pos- 
 session. 
 
 No one can sue who hu-s not the right to immediate posses- 
 sion, (z) — The owner of goods can not bring trover for 
 an act of conversion committed when he has not the 
 right to immediate possession. A. let furniture to B., his 
 tenant. . It was, during the continuance of the lease, 
 wrongfully taken in execution by the sheriff, X., and sold. 
 It was held that A., the landlord, could not bring trover 
 against X., {k) it having been alread}' settled that a land- 
 lord could not, under similar circumstances, maintam 
 trespass. (/) 
 
 " Trover will not lie in any case, unless the property 
 was in the actual or implied rightful possession of the 
 plaintiff. In this case the plaintiff had neither the one 
 nor the other pending the demise, and when that is 
 determined, perhaps he may have his goods restored to 
 him again in the same state in which they now are, 
 when it will appear that he has not sustained [360] 
 that damage which he now seeks to recover in the 
 action." {in) " Here," adds Lawrence, J., " if the taking 
 of the goods had determined the interest of the tenant in 
 
 (^) Bac. Abr., Trover, C. ; Nicholls v. Bastard, 2 C. M. & R. 659. 
 (A) Cooper v. .Shepherd. 3 C. H. 266; 15 L. I. 237, C. P.; Buckland v 
 Johnson, 15 C. B. 145 ; 23 L. J. 204, C P. 
 («' ) See Subordinate Rule 3, anlf. 
 (k) Gordon v. Harper, 7 T. R. 9. 
 (/) Ward V Macuulay, 4 T. R.4S9. 
 (w) Gordon v. FIar|)cr, 7 I". R. 12, 13, judgment of AsilURST, J
 
 382 PARTIES TO ACTIONS. 
 
 them, and rc-vcstcd it in the landlord [/. e., had restored to 
 the landlord the right to possession], I admit that the 
 latter might maintain trover for them ;(«).... but 
 it is clearly otherwise, for here the tenant's property and 
 interest did not determine by the sheriff's trespass, and 
 the tenant might maintain trespass against the wrong-doer. 
 lie is bound to restore the goods to the landlord at the 
 end of his term, and could not justify his not doing so 
 because a stranger had committed a trespass upon him in 
 taking them away." {o) Hence, if A. pawns goods, or 
 mortgages them to B., or gives B. a lien upon them, he 
 can not bring trover during the continuance of the bail- 
 ment. (/) " Gordon v. Harper, which must now be 
 considered as settled law, shows that if a person has an 
 interest in goods for a certain time, by agreement with 
 the owner, the latter, during the time he is not in posses- 
 sion, can not maintain trover against a wrong-doer who 
 takes the goods. That case might, with propriety, have 
 been decided differently in the first instance ; but it has 
 been followed by others, and the court of common pleas 
 somewhat extended the rule in Bradley v. Copl.ey. 
 There it was held, that where a person in possession of 
 goods had an uncertain interest determinable by the 
 owner, until that event happened [i. e., until the interest 
 was determined], the owner could not maintain trover." 
 {g) On similar grounds, a buyer in default can not main- 
 tain trover against a seller for a re-sale of the goods sold 
 to him, but left in the possession of the vendor, since the 
 
 purchaser is deprived, by his default in payment, 
 [361] of the right to immediate possession. He may, 
 
 however, sue the vendor for a breach of con- 
 tract, (r) 
 
 Right to immediate possession acquired. — Though the 
 
 (n) See Berry v. Heard. 2 Bro. Car. 242. 
 
 [p) Gordon v. Harper, 7 T. R. 13, 14, judgment of Lawrence, J. 
 
 {p) Milgate V. Kebble, 3 M. & G. 100; Richards v. Symons, 8 Q. B. 90 
 Bradley v. Copley, I C. H. 685 ; 14 L. J. 222, C. V. 
 
 {q) Mandc-rs v. Williams, 4 Ex. 343. judgment of Pakke, B. 
 
 (r) Benjamin, Sale, 594 ; Mil;^ate v. Kebblf, 3 M. & G. 100. Compare Mar- 
 tindale v Smith, i Q. B. 389 ; Stephens v. Wilkinson, 2 B. & Ad. 320.
 
 GENERA L RULES. 383 
 
 owner of goods, who has not acquired the right to imme- 
 diate possession, can not bring trover, he may do so the 
 moment that this right is obtained by him. Thus, A, 
 purchases goods of X., but they are left in X.'s hands 
 until the price is paid. If the goods are re-sold by X., 
 whilst A. is in default, A. can not maintain an action 
 against X., being deprived. by his default of that right of 
 possession without which trover will not lie. {s) Suppose, 
 however, that, before the sale by X., A. has tendered the 
 price, or that the goods have been bought on credit, (/) 
 and before the credit has expired, X. sells. A., not being 
 in default, may bring trover against X., or against the 
 purchaser, {ti) Hence, where A. bought sheep on credit, 
 and left them in the custody of X., the vendor, who, 
 without any default on the part of A., re-sold the sheep, it 
 was held that, though the price had not been paid or 
 tendered by A., the re-sale of the sheep was a conversion 
 for which A. could maintain trover against X. {x) 
 
 Right to iniincdiate possession restored or re-vested. — A 
 bailor who hcis parted with the right to possession can 
 maintain trover when the right to possession is restored 
 to or re-vested in him. It may be restored by the natural 
 termination of the bailment. A., for example, lets goods 
 to B. for a month. At the end of the month, A.'s right to 
 the immediate possession of the goods, and consequently 
 his right to bring trover against any one who interferes 
 with it, is restored. 
 
 But the bailment may be determined before the [362J 
 time at which it would naturally end, and the 
 right to immediate possession be thus re-vested in the 
 bailor by the act of the bailee. Thus, if A. leaves his 
 goods in the hands of X., who has a lien upon them, and 
 X. abuses it by pledging or selling the goods, A.'s rigiit 
 to the possession (as a general rule) revives, and he may 
 
 (:) Mil,;ale v. Kel)blc. 3 M. .& G. 100; Benjamin, Sale. 594. 
 
 (/) Martindale v. Smith. I Q. H. 389; Chincry v. Viall, 5 H. & N. 2S8 ; 29 
 L. J. 180, Ex. 
 
 («) I'.i-njamin, S.ilc, 594. 595. 
 
 (x) Chinery v. Viall. 5 H. & N. 28S ; 28 L. J. I So, Ex. Comiare Martin 
 laic V. .Smith. I Q. Ij. 389 ; 10 L. J. 155. Q. 15.
 
 384 PARTIES TO ACTIONS. 
 
 therefore maintain trover, {y) For a right of lien being 
 a mere personal right which can not be parted with, it 
 follows that a bailee who has a lien can not sell his right 
 to another without losing his right of lien, {s) unless the 
 property has been plcclged to secure the repayment of 
 money advanced with an express or implied power of 
 sale, {a) for there is a clear distinction in this respect 
 between a lien which is a mere personal right of deten- 
 tion and a pledge deposited to secure the repayment of 
 monc}-. {b) 
 
 The general principle is perfectly clear; viz., that 
 when a person who has a limited interest in chattels [c. g., 
 as hirer, lessee, or pledgee of them) does an}^ act wholly 
 inconsistent with the contract under which he has tlit 
 limited interest {i. e., the bailment), he must be taken to 
 have determined his special interest in the things, so that 
 the lessor, pledgor, or other bailor, may maintain an 
 action of trover as if the interest of the bailee had never 
 been created, [c] 
 
 " There is a class ot cases m which a person having a 
 limited interest in chattels, either as hirer or lessee of 
 them, dealing tortiously with them, has been held to deter- 
 mine his special interest in the things, so that the owner 
 may maintain trover as if that interest had never been 
 created. But I think in all these cases the act done by 
 the party having the limited interest was wholly 
 [363] inconsistent with the contract under which he had 
 the limited interest ; so that it must be taken, from 
 his doing it, that he had renounced the contract which, as 
 was said in Fenn v. Bittleston, {d) operates as a disclaimer 
 of a tenancy at common law ; or, as it was put in John- 
 son V. Stear, {e) he may be said to have violated an implied 
 
 {}') Scott V. Newington, i Moo. & R. 252. 
 
 {z) Clark V, Gilbert, 2 B. N. C. 257. 
 
 (a) Johnson v. Stear, 33 L. J. 130, C. P. ; 15 C. B., N. S., 330. 
 
 {b) Donald v. Suckling, L. R. i, Q. B. 585. Compare Halliday v. Holgate, 
 L. R. 3, Ex. 299 ; Addison, Toits, 3rd ed., 430. 
 
 ic) Donald v. Suckling, L. R. i, Q. B. 585. 614, judgment of BLACK- 
 BURN, J. 
 
 {d) 7 Ex. 152 ; 21 L. J. 41, Ex. 
 
 \e) 15 C. B., N. S., 330, 341 ; 33 L. J. 130. 134, C. P
 
 GENERAL RULES. 385 
 
 condition of the bailment. Such is the case where a hirer 
 of goods, who is not to have more than the use of them, 
 destroys them or sells them ; that being so wholl}- at 
 variance with the purpose for which he holds them that 
 it may well be said that he has renounced the contract by 
 which he held them, and so waived and abandoned the 
 limited right which he had under that contract. It may 
 be a question whether it would not have been better if it 
 had been originally determined that, even in such cases, 
 the owner should bring a special action on the case, and 
 recover the damage which he actually sustained, which 
 may in such cases be ver}'^ trifling though it may be large, 
 instead of holding that he might bring trover and recover 
 the whole value of the chattel without any allowance for 
 the special property. But I am not prepared to dissent 
 from these cases, where the act complained of is one 
 wholly repugnant to the holding, as I think it will be 
 found to have been in every one of the cases in which this 
 doctrine has been acted upon." (/) 
 
 The difficulty lies in determining whether a given act 
 IS or is not equivalent to a renunciation of the particular 
 contract of bailment. Some acts, no doubt, such as the 
 total destruction of the goods bailed, would at once ter- 
 minate any kind of bailment ; but whether the hirer of a 
 chattel, e. g., a horse, has the right to let it to a third per- 
 son, is doubtful, and in each case the question, what acts 
 are inconsistent with a particular bailment, must depend 
 on the nature of the bailment and the exact 
 terms, either express or implied, of the contract [364] 
 under which the bailor delivered his goods to the 
 bailee, {g) A person, for example, who has a mere lien, 
 can not sell or pledge the goods in his hands without 
 putting an end to the lien. The rights of a pledgee are 
 more doubtful, (h) 
 
 '* I think it unnecessary," says CocKBURN, C. J., 
 
 (/) Donald V. Suckling, L. K. i, Q. B. 614, 615, judgment of Blacx- 
 BURN. J. 
 
 (g) Lancashire Wafjon Co. v. Fitzhugh 6 II. & N. 502 ; 30 L. J. 231, Ex.. 
 esp. 233, for remarks of Pollock, C. B. 
 
 (A) LegK V. Evans, 6 M. & W. 36 
 2«;
 
 386 PARTIES TO ACTIONS. 
 
 " to the decision in the present case, to deter, 
 mine whether a party with whom an article has been 
 plcdij^ed, as security ibr the payment of money, has a 
 right to transfer his interest in the thing pledged (subject 
 to the right of redemptljii -n the pawnor) to a third 
 party. I should certainly hesirale to lay down the affirma- 
 tive of that proposition. Such a right in the pawnee 
 seems quite inconsistent with the undoubted right of the 
 pledgor to have the thing pledged returned to him imme- 
 diately on the tender of the amount for which the pledge 
 was given. In some instances it may well be inferred 
 from the nature of the thing pledged, — as in the case of a 
 valuable work of art, — that the pawnor, though perfectly 
 willing that the article should be entrusted to the custody 
 of the pawnee, would not have parted with it on the terras 
 that it should be passed on to others and committed to 
 the custody of strangers. It is not, however, necessary to 
 decide this question in the present case. The question 
 here is, whether the transfer of the pledge is not only a 
 breach of the contract on the part of the pawnee, but 
 operates to put an end to the contract altogether, so as 
 to entitle the pawnor to have back the thing pledged 
 without payment of the debt. I am of opinion that the 
 transfer of the pledge does not put an end to the con- 
 tract, but amounts only to a breach of contract, upon 
 which the owner may bring an action for nominal damages 
 if he has sustained no substantial damage, for substantial 
 damages if the thing pledged is damaged in the hands of 
 the third party, or the owner is prejudiced by delay 
 [365J in not having the thing delivered to him on tender- 
 ing the amount for which it was pledged." {i) 
 The inquiry, again, whether a hirer or lessee puts an 
 end to the bailment by a sale of the goods leased to him, 
 and thus restores to the bailor the immediate right to 
 possession, presents some difficulty. It is clear that the 
 purchaser can take no greater interest than the bailee 
 possesses. It is also (it is submitted) established that an 
 
 (t) Donald v. Suckling, L. R. I, Q B. 61S, judgment of Cockbwrn, C. J 
 Compare Halliday v. Holgate, L, R. 3. Ex. 2()q.
 
 GENERAL RULES. 387 
 
 absolute sale by the hirer, that is to sa)', a sale of more 
 than his own interest at once, determines the bailment. (>6) 
 Thus B. hired goods from week to week from A., and after- 
 wards sold and delivered them to X., a bona fide purcha- 
 ser, (/) It was held that A. could sue X. in trover, on the 
 ground that "if goods be let on hire, although the person 
 who hires them has the possession of them for the special 
 purpose for which they are lent, yet if he send them to 
 an auctioneer to be sold, and that auctioneer refuse to 
 deliver them to the owner, ... he is guilt}' of conver- 
 sion." {ill) So where B. mortgaged his household furni- 
 ture to A., but remained in possession of it, and upon his 
 becoming bankrupt, his assignees sold the whole of the 
 furniture absolutely, it was held that the sale by the 
 assignees of B. destroyed the bailment, and that a sale by 
 the assignees being equivalent to a sale by B. himself, A.'s 
 representatives could maintain trover against the assign- 
 ees, (n) " If these goods had been simply taken by a 
 third person out of [B.'s] custod}' during the term stipu- 
 lated for, no action of trover could have been maintained, 
 because the plaintiffs would have had no present right to 
 the possession. The cases of Gordon v. Harper 
 and Bradle}' v. Copley, would certainly have [366] 
 appHed ; but the learned counsel for the plaintiffs 
 contended that if the bailment was for that term it was 
 put an end to by the act of the assignees (whose act for 
 this purpose is the same as that of B. himself) in selling 
 the chattels absolutely before the 22nd of March, 1850, and 
 so preventing themselves from returning them at the end 
 of the term, and that such sale was itself a conversion; 
 and we are of that opinion." {6) 
 
 But a mere wrongful taking of the goods by a third 
 person out of the hands of the bailee is an injury to iiim, 
 but docs not terminate the bailment, or rc-vest the right 
 
 {k) See Chapter XXV. 
 
 (/) Cooper V. Willomatt. i C. 13. ^171 ; 14 1.. J. 219, C. P. 
 (w) Il)ici., I C. li. 682, judgment of TiNnAl., C. J., citing hocsclimfn v. 
 Machin, 2 Stark., N. P. C, 311. See Bryant v. Wardell, 2 Lxch. 479. 
 (w) Fcnn v. Uittk-ston, 7 Kxch. 152 ; 21 L. J. 41, Ex. 
 {fi) Fcnn V. Hitilesfon, 7 Kxch. 15S, 150, per Curiam.
 
 388 PARTIES TO ACTIONS. 
 
 of possession in the bailor; (/) and, further, it seems that 
 the bailee, though he terminates the bailment by an abso- 
 lute sale of the goods, yet can sell his own interests in 
 them without pn)ducing that effect. If, for example, 
 goods are let by A. to X. for a year, X. can probably sell 
 the use of the goods for a year to Y. without putting an 
 end to the Isase. {q) 
 
 The wrongful act, not of the bailee, but of a third party, 
 mav sometimes i-estore to the bailor his right to possess 
 his chattels. Suppose that B. has possession of, and a 
 lien upon, the goods of A., X., by wrongfully taking them 
 from the hands of B., puts an end to the bailment, and 
 restores to A. the right of possession, and so, though if 
 goods are let to B., the mere taking of them by X. does 
 not determine the lease, the total destruction of them by 
 him would (it is submitted) have that effect, and there- 
 fore restore to A. the right to bring trover. 
 
 [367] SUBORDINATE RULE IV. 
 
 Any person entitled to the reversionary interest in goods (i. e., 
 the reversioner^, may bring an action for any damage to 
 such i7iteresty or, in other words, to his right of ultimate 
 possession. 
 
 If A. lets furniture to B., and X. simply takes it, or 
 keeps it out of B.'s hands, this being no injury to A., who 
 has not the right to immediate possession, he can not 
 bring trover or trespass against X. He has, however, 
 still an interest in the furniture, i. e., the right to have it 
 safe and uninjured at the end of the letting. If, therefore, 
 X. permanently damages the goods, as for example, breaks 
 them, he injures A., and A. may sue X. for the damage to 
 his reversionary interest. A., the owner of a barge, let it 
 to B. Whilst in B.'s possession, and during the contimi- 
 
 (/) Gordon v. Harper, 7 T. R. 9 ; Tiradley v. Copley, I C. B. 685 ; 14 L 
 J. 222, C. P. ; Lancashire Wagon Co. v. Fitzhiigh, 6 H. & N. 502 ; 30 L. J. 231 
 Ex. ; Tancred v. Allgood, 28 L. J, 362, Ex. ; 4 H. & N. 438. 
 
 (q) Dean v. Whitaker, i C. & P. 347. Compare Lancashire Wagon Co. v 
 Fitzhugh, 6 H. & N. 502 , 30 L. J. 231, Ex.
 
 GENERAL RULES. 389 
 
 ance of the lease, the barge was damaged through the 
 negligence of X., and A. was held entitled to maintain an 
 action for this injury, (r) " The question is," says Erle, 
 C. J., " whether the owner of the barge has a right to 
 maintain an action for that injury? In my opinion he has 
 that right, the mere temporary outstanding interest in 
 the hirer of the barge amounting to nothing. That trover 
 will not lie for the conversion of a chattel out on loan, is 
 clear, {s) but in Tancred v. Allgood, (/) it was held that 
 an action for a permanent injury done to a chattel whilst 
 the owner's right to the possession is suspended, may be 
 maintained." {u) " It is," adds Williams, J., " fully 
 established that in the case of a bailment not for reward, 
 either the bailor or the bailee may bring an action for an 
 injury to the thing bailed ; but in the case of a hiring, 
 the owner can not bring trover, because he has tem- [368] 
 porarily parted with the possession. It seems to 
 me, however, to be clear that though the owner can not 
 bring an action where there has been no permanent injury 
 to the chattel, it has never been doubted that where 
 there is a permanent injury the owner may maintain an 
 action against the person whose wrongful act has caused 
 that permanent injury." {x) 
 
 The injury must be permanent, otherwise the owner's 
 mterest not being affected, he can not sue. (j/) What is a 
 permanent injury must probably be in each case a ques- 
 tion for the jury. 
 
 There are many wrongs for which neither trespass, 
 trover, nor detinue will lie. None of these actions, for 
 example, can be brought when the plaintiff suffers from 
 ^nnic a( t or omission of the defendants which is not 
 
 I r\ M I 
 
 V. London and South- Western Rail. Co., ii C. B., N. S., 850 ; 31 
 L. J. 220, C. v. 
 
 (s) Gordon v. Harper, 7 T. R. 9. 
 
 (/) 14 If. & N. 438 ; 23 L. J. 362. Ex. 
 
 {it) Miars V. London and South-Western Rail. Co.. 11 C. 1?., N. S, 854. 
 judgment of Eri.k, C. J. 
 
 (x) Mcars v. London and Soulli-Wcstern Rail. Co., ii C. B., N. S., 854, 
 ludgment of Williams, J. 
 
 (y) T.-incred v. A!l(,'nod. 29 L. J. 262, Ex. . 4 IL & N. 433; Lancashire 
 Wagon Co. v. FitzhuRh, 6 H. & N. 502 ; 30 L. f. 321, Ex.
 
 390 PARTIES TO ACTIONS. 
 
 actio. <able in itself but is actionable only because it has 
 cause! perceptible damage to the plaintiff, (.s-) as where 
 the p) lintiff suffers from the negligence of the defendant. 
 The general principle, however, that each person must 
 sue fo)' the wrong which he has suffered, applies equally, 
 to all ( lasses of actions. 
 
 Act io?is for negligence. — Under this head are included 
 actions of essentially different kinds, sc, actions for tort 
 and actions for breach of contract. X., for example, 
 drives his carriage negligently, and runs over A., who 
 sues him for the damage done through his negligence 
 The action is in this case obviously one ex delicto. X. 
 hires a carriage from A., and damages it through his 
 neeflisrent drivins;-. Whatever be the form in which A. 
 sues X., the action is in this case, it is conceived, though 
 it may be called an action for negligence, one which in 
 
 reality depends upon the contract between X. and 
 [369] A., and which is, therefore, to be considered an 
 
 action ex contractu. It is possible that even in this 
 case difference of opinion may exist as to the true charac- 
 ter of the action, and instances certainly occur in which 
 it is difficult to determine to which of the two classes an 
 action for negligence ought to be referred, {a) 
 
 X. and Y., a gas company, contracted to supply A., 
 the plaintiff, with a proper pipe to convey gas from the 
 main outside to a meter inside his premises. Gas escaped 
 from the pipe laid down under the contract into A.'s shop. 
 Owing to this escape an explosion of gas took place, and 
 A.'s shop and stock wei-e damaged, and it was found by 
 the jury on the trial, that the escape arose from a defect 
 in the pipe. The judges of the Court of Exchequer agreed 
 in holding that A. was entitled to recover damages from 
 X. and Co., {b) but differed as to the nature of the cause 
 of action; Kelly, C. B., being of opinion that the " sub- 
 
 (s) See ante. 
 
 (a) Compare Burnard v. Haggis, 14 C. B., N. S., 35 ; 32 L. J. 189. C. P. ; 
 Rlakemore v. Bristol and Exeter Rail. Co., 8 E. & B. 1035 ; 27 L. J. 167, Q. B 
 See Coggs v. Bernard, i Smith, L. C, 6ih ed., 177; Addison, Torts, 3rd ed. 
 407-416. 
 
 I^b) Burrows March Gas Co., L. R. 5, Ex. 67.
 
 LrENERAL RULES. 391 
 
 stantiai complaint was rather of a tort than of a breach of 
 contract," {c) whilst Martin, B., conceived the real cause 
 of action to be a breach of contract, {d) The solution ot 
 any perplexity which may be thought to exist in this case 
 is (it is submitted), that the defendant had violated two 
 distinct rights of the plaintiff, the one to receive pipes of 
 a certain quality under the contract, the other, not to have 
 his property damaged through the negligence of the 
 defendants. If the explosion had destroyed the house of 
 B., A.'s neighbor, there is little doubt that B. could have 
 sued X. and Co., although there was no contract between 
 them and him. 
 
 Though the difficulty in distinguishing actions [370] 
 for negligence which are actions ex delicto from 
 actions for negligence which are actions ex contractu, 
 arises partly from the nature of things, it is increased by 
 the practice of bringing actions for breach of contract in 
 the form of actions for tort. 
 
 Actions for torts founded on contract. — A breach of 
 contract can (/") be almost al\va3^s represented in form as 
 a tort, i. e., the plaintiff may sue, not for the non-perform- 
 ance of an agreement, but for the neglect of a duty which 
 arises from or is connected with the agreement. A main 
 object of adopting such a course is to enable a stranger 
 to a contract to sue for what either is, or at any rate may 
 be considered to be, a breach of it. {g) 
 
 How far can this object be attained ? The reply to 
 this question, and the general principles applying to 
 actions for torts grounded on contract, may be summed up 
 in the following three statements, which (it is submitted) 
 may be fairly deduced from the cases on the subject : — 
 
 I St. An action, which in substance depends upon a 
 breach of contract, can not be brought by any person not 
 a party to the contract, even though it be presented in 
 the form of an action for tort. (//) 
 
 ic) 11)1(1.. 70, juiijjment of Kf.li.y, C. B. 
 
 (d) Ibid., 73, judjjmcnt of Martin. B. 
 
 (/) See ante. 
 
 ig) Rule 10. 
 
 (h) Tollil V. Shenstone 5 M & W. 2S3 ; Wiiitcibottoin v. Wrij^ht, 10 M. &
 
 S92 PARTIES TO ACTIONS. 
 
 A chano-e in the form of an action can not snbstantially 
 affect the liability of the clcfciulant. A defendant, there- 
 fore, who is liable merely on account of a ci)ntract, can 
 not be made liable to a person not a party to the contract, 
 simplv because such stranger to the contract treats what 
 IS really a breach of it as the neglect of a duty. " It is 
 clear that an action on contract can not be main- 
 [371] tained by a person who is not a party to the con- 
 tract, and the same prmciple extends to an action 
 of tort arising out of a contract." (?) 
 
 X. contracted with the postmaster-general to provide 
 a mail-coach along a certain line of road, and M. and 
 others contracted to horse the coach. A. was hired by 
 M. to drive it, and was injured while driving the coach, 
 through its breaking down from latent defects in its con- 
 struction. It was held that A. had no right of action 
 against X., on the ground that there was no privity of 
 contract between them, {k) " There is a class of cases," 
 it is laid down in this case, " in which the law permits 
 a contract to be turned into a tort. But unless there 
 has been some public duty undertaken, or public nuisance 
 committed, they are all cases in which an action might 
 have been maintained upon the contract. Thus, a carriei 
 may be sued either in assumpsit or on the case ; (/) but 
 there is no instance in which the party who was not privy 
 to the contract entered into with him can maintain any 
 such action. The plaintiff in this case could not have 
 brought an action on the contract. If he could have done 
 so, what would have been his situation if the postmaster- 
 general had released the defendant ? That would, at all 
 events, have defeated his claim altogether." (ot) In reply 
 to the allegation contained in the declaration, that it was 
 the duty of the defendant to keep the coach in a safe con- 
 
 W. 109; II L.J. 415, Ex. ; Longmead v. Ilolliday, f) Exch. 761 ; 20 L. J. 
 430, Ex. ; Blakemore v. Bri-tol, &c., Rail. Co., 8 E. & B. 1035 ; 27 L. J. 167, 
 Q. B. ; Alton v. Midland Rail. Co., 19 C. B., N. S., 213 ; 34 L. J. 292, C. P. 
 
 (t) Tollit V. Shenslone, 5 M. & W. 2S9, per Maui.E, B. 
 
 (/t) Winteibottom v. Wright, 10 M. & W. 109 ; 11 L. J. 415, Ex. 
 
 (/) See forms of action, ai//e. 
 
 {m) Winterbottom v. Wright, 10 M. & W. 115, judgment of Abinger, C. B.
 
 GENERAL RULES. 393 
 
 dition, there was made the following observation, which 
 applies in substance to all actions of the same description. 
 " The duty .... is shown to have arisen solely 
 from the contract, and the fallacy consists in the use of 
 the word duty. If a duty tc> '"he postmaster-general be 
 meant, that is true, but if a duty to tne plaintiff be 
 intended (and in that sense the word is evidently [372] 
 used), there was none. This is one of those unfor- 
 tunate cases in which there certainly has been damnum 
 but it is damnum absque injuria." {n) 
 
 On the same principle, a master has been held to have 
 no ground of action against a railway company for loss to 
 him through injuries to his servant, sustained by the latter 
 through the negligence of the company when being 
 carried as a passenger by them. {0) So, again, it has been 
 settled (/) that a tradesman who contracts with an indi- 
 vidual for the sale to him of an article to be used for a 
 particular purpose by a third person, is not, in the absence 
 of fraud, liable for injury caused to such person by some 
 defect in the construction of the article. Where X. sold 
 to A. a lamp to be used by B., the wife of A., which from 
 its defective construction exploded and injured B., it was 
 held that an action against X. could not be maintained 
 by the wife, there being no wrong to her, independent of 
 the contract which was made with the husband alone. (/) 
 If fraud had existed, the person injured would have had a 
 ground of action independently of the contract, for the 
 wrong done to her. Hence, this case is distinguishable 
 from others which at first sight seem to conflict with the 
 principle that no one not a party to the contract can sue 
 tor its breach by treating it as a tort. These cases are 
 illustrations of the principle summed up in the following 
 proposition : — 
 
 2ndly. A person injured in consequence of the tortious 
 act, e.g., fraud, of another, may bring an action for such 
 
 (n) Winterhottom v. Wright. lo M. & W. Ii6. judgment of Koi.i K. 15. Sot 
 
 41HU. 
 
 (o) Alton V. Mi.lland Rail. Co., 19 C. D.. N. S., 213 ; 34 I-- J- 292. C. P. 
 (p) Loiij^nic.-i'l V. Holliday. 6 Kx. 761.
 
 394 PARTIES TO ACTIONS. 
 
 injury, even though the tort to him be connected with the 
 breach of a contract made with a third person to which 
 the plaintiff is a stranger, {q) It is, however, essen- 
 [^^y}^'] tial that there should be a distinct tort to the plain- 
 tiff, as distinguished from the mere breach of con- 
 tract., 
 
 L., the father of A., the plaintiff, bargained with X. the 
 defendant, to buy of him a gun for the use of himself and 
 of A., and X. sold the gun to L. for the use of himself and 
 A., by fraudulently warranting the gun to be a safe and 
 secure gun; A., the plaintiff, in consequence of this 
 warranty, used the gun, which was not safe and secure, 
 but burst and injured the plaintiff. It was held (after a 
 verdict for the plaintiff on the plea of not guilty, and pleas 
 denying the warranty), that an action was maintainable 
 by A. against X. (r) This case is not really, though it 
 might appear to be so, inconsistent Avith the principle, 
 that a stranger to a contract can not sue for its breach. 
 The contract was manifestly made with L., and not with 
 A., the plaintiff; and the Court specially guard them- 
 selves against being supposed to decide that A. could sue 
 on the contract. " We are not prepared," it is said in the 
 judgment, [s) " to rest the case upon one of the grounds 
 on which the . . . counsel sought to support his 
 right of action ; namely, that wherever a duty is imposed 
 upon a person by contract or otherwise, and that duty is 
 violated, any one who is injured by the violation of it 
 may have a remedy against the wrong-doer; we think 
 this action may be supported without laying down a 
 principle which would lead to that indefinite extent of 
 liability so strongly put in the course of the argument on 
 the part of the defendant ; and we should pause before 
 we made a precedent by our decision which would be an 
 authority for an action against the vendors, even of such 
 
 (^) Langridge v. Levy, 2 M. & W. 519 ; 4 M. & W. 338 ; Gladvvell v. Steg- 
 gall, 5 B. & C. 753 ; Marshall v. York, &c., Rail. Co., 11 C. B. 655 ; 21 L. J 
 34, C. V. ; George v. Skivington, L. R. 5, Ex. i. 
 
 (r) Langridge v. Levy, 2 M. & W. 519; affirmed in error, 4 M. & W 
 
 338. 
 
 (/) Ibid., 2 M. & W. 530, per Curiam.
 
 GENERAL RULES. 395 
 
 mtftiumeiits and articles, as are dangerous in themselves, 
 at the suit of an}^ person whomsoever into whose 
 hand they might happen to pass, and who should be [374] 
 injured thereby." The ground on which the 
 decision rests is, that the defendant " knowingly sold the 
 gun to the father for the purpose of being used by the 
 plaintiff, by loading and discharging it, and . . . 
 knowingly made a false warranty that it might be safely 
 done, in order to effect the sale, and the plaintiff on the 
 faith of that warranty, and believing it to be true, . . . 
 used the gun and thereb}^ sustained damage," (/) and is, in 
 short, that there was " fraud and damage the result of 
 that fraud, not from an act remote and consequential, but 
 one contemplated by the defendant at the time as one of 
 its results, and that therefore the party guilt)^ of the fraud 
 [was] responsible to the party injured." {tt) So, where A. 
 was induced to take shares in a company, of which X. was 
 managing director, through a false and fraudulent repre- 
 sentation of X.'s that the directors would guarantee 
 certain advantages to purchasers, and thereby lost money 
 on his shares, an action was held to be maintainable V)y A. 
 against X., though in the same case it was decided, that 
 A. could not sue X. for breach of contract, {v) and the 
 ground taken in the judgment was, that no privity between 
 the parties was necessary, and that imder the " circum 
 stances, although the parties be entire strangers to one 
 another, an action would lie," since it " would be strange 
 if a man who had so suffered damage from the wronghil 
 act of another should be without remedy." Nor does the 
 principle of the foregoing cases apply to actions for fraud 
 only. " There arc other cases, no doubt, besides those of 
 fraud in which a third person, though not a paity to the 
 contract, may sue for the damage sustained, if it be 
 broken. These cases occur where there has been a wrong 
 done to that person for which he would have had a 
 right of action, though no such contract had been made 
 
 (/) I.anfjridge v. I.evy, 2 M. & W. 532. 
 
 («) Ibid. 
 
 (v) Gerhard v. I'.alcs. 2 E. & H. 476 ; 22 I,. J. 364, Q. B.
 
 30 PARTIHS TO ACTIONS. 
 
 [375] As, for example, if an apothecary administered 
 improper medicines to his patient, or a surg-eon 
 imskillfully treated him, and thereby injured his health, 
 he would be liable to the patient, even where the father or 
 friend of the patient may have been the contracting party 
 with the apothecary or surgeon ; for though no such con- 
 tract had been made, the apothecary, if he gave improper 
 medicines, or the surgeon, if he took him as a patient and 
 unskillfully treated him, would be liable to an action for 
 a misfeasance, {x) A stage-coach proprietor, who may 
 have contracted with a master to carry his servant, if he 
 is .gnilty of neglect, and the servant sustains personal 
 damage, is liable to him ; for it is a misfeasance towards 
 him if, after taking him as a passenger, the proprietor 
 drives without due care, as it is a misfeasance towards any 
 one traveling on the road. So, if a mason contracts to 
 erect a bridge or other work in a public road, which he 
 constructs, but not according to the contract, and the 
 defects of which are a nuisance to the highway, he may 
 be responsible for it to a third person who is injured by 
 the defective construction, and he can not be saved from 
 the consequences of his illegal act in committing the 
 nuisance on the highway, by showing that he was also 
 guilty of a breach of contract and responsible for it. And 
 it may be the same when any one delivers to another with- 
 out notice an instrument in its nature dangerous, or under 
 particular circumstances, as a loaded gun, which he him 
 self loaded, and that other person to whom it is delivered 
 is injured thereby, or if he places it in a situation easily 
 accessible to a third person who sustains damage from 
 it." {y) 
 
 A. bought of X. a certain hair-wash for the use of B., 
 
 the wife of A. X. represented it to be fit to be used for a 
 
 hair-wash without causing injury to the person 
 
 [376J using it ; and knew that it was bought by A. for 
 
 the use of B. B. used it, and was injured thereby 
 
 {x) Pippin V. Sheppard, il Price, 400; Gladwell v. Sleggall, 8 Scott, 60; 5 
 B. N. C. 733- 
 
 {y) Longmeid v. Holliday, 6 Exch. 767, 768, judgment of Parke, B.
 
 GEXERAL RULES. 397 
 
 A, and B. brought an action against X. for the injury 
 caused to B., owing to his negligence and want of skill. 
 Though fraud Avas not imputed to X., and the contract 
 was on the face of the declaration with A., it was held, 
 nevertheless, on demurrer, that an action could be brought 
 by A. and B. {z) " The question," said Kelly, C. B, " is 
 whether an action at the suit of the plaintiff, her husband, 
 being joined for conformity, will lie. It is contended that 
 it will not. There was no warranty, it is said, either 
 express or implied, towards the purchaser himself. But it 
 is not necessary to enter into that question, because the 
 contract of sale is only alleged by way of inducement, the 
 cause of action being, not upon that contract, but for an 
 injury caused to the wife of the purchaser, by reason of an 
 article being sold to him for the use of his wife, and so sold 
 to the defendant's knowledge, turning out to be unfit for 
 the purpose for which it was bought. There is, therefore, 
 no question of warranty to be considered, but whether 
 the defendant, a chemist, compounding the article sold for 
 a particular purpose, and knowing of the purpose for 
 which it was bought, is liable in an action on the case for 
 unskillfulness and negligence in the manufacture of it, 
 whereby the person who used it was injured. And 1 
 think that, quite apart from any question of warranty, 
 express or implied, there was a duty on the defendant, the 
 vendor, to use ordinary care in compounding this wash lor 
 the hair. Unquestionably there was such a duty towards 
 the purchaser, and it extends, in my judgment, to the 
 person for whose use the vendor knew the compound was 
 purchased, {a) 
 
 3rdly. Some difference of opinion exists on the 
 question whether certain kinds of injuries, especi- [377J 
 ally those arising from the negligence of carriers, 
 are, or are not, torts strictly speaking, /. c, whether they 
 
 («) George v. Skivington, L. R. 5. Ex. i. B. l)Lim; a married woman, the 
 action was necessarily brought by A. & B. , but in j)rincii)lc it may be consiu 
 ercd an action by B. ; see Kuies 29 and 86. 
 
 (a) Ibid., 3, 4, judgment of Kki.i.V, C. B. Conf. Ibid., 5, judgment of 
 Cleasby, B.
 
 398 PARTIJiS TO ACTIONS. 
 
 are wrongs inclcpcndont of contract, or breaches ot con- 
 tract sued for in the form of actions for tort, {b) 
 
 A., the plaintiff, traveled with his master, M., by the 
 railway company of X. & Co. ; M. took and paid for A.'s 
 ticket. It was held that A. could maintain an action 
 against X. & Co. for the loss of his portmanteau, {c) 
 The point to be decided was admitted to be whether il 
 was necessary to show a contract between the plaintiff 
 and the company, and the decision rested upon the 
 ground that the action was in substance not an action on 
 contract but an action for tort, brought against the com- 
 pany as carriers, and that the allegation of a contract 
 was altogether unnecessary, [d) 
 
 Where A., the pkiintiff, a child, a little more than 
 three years old, was taken by his mother by the railway 
 of X. and Co., and the mother took a ticket for herself, 
 but none for A., A. was held entitled to bring an action 
 against X. & Co. for injuries received by him whilst a 
 passenger, {e) In this case it is laid down by Black- 
 burn, J., that " the right which a passenger by railway 
 has to be carried safely does not depend on his having 
 made a contract, but that the fact of his being a passen- 
 ger casts a duty on the company to carry him safely." (/) 
 
 A., the plaintiff, and his goods were carried by X. & 
 Co., under a contract on the part of X. & Co. with the 
 Indian Government, to carry certain persons, ot 
 [378] whom A. was one ; A.'s goods were destroyed by 
 the defendants' negligence. It was held that A 
 could not sue X. & Co. for breach of contract, but that he 
 was entitled to sue for an injury done to his property 
 through their negligence whilst in their custody, {g) 
 " As for the first count which sounds, in contract, and in 
 substance, though not in form, charges a violation of a 
 
 {b) See, as to the nature of aclions for torts founded on contract, ante. 
 
 {c) Marshall v. York., &c.. Rail. Co., 11 C. B. 655 ; 21 L. J. 34, C. P. 
 
 (d) Ibid., 663, 664, judgment of Williams, J.; Collett v. London and 
 North-Western Rail. Co., 16 Q. B. 984 ; 20 L. J. 411, Q. 15. 
 
 (<•) Austin V. Great Western Rail. Co., L. R. 2, Q. B. 442; 36 L. J. 201, 
 Q.B. 
 
 (/) Ibid., L. R. 2, Q. B. 445. Judgment of Blackhurn, J. 
 
 {g) Martin v. Great Indian Rail. Co., L. R. 3, Ex. 9 ; 37 L. T. 27, Ex
 
 GENERAL RULES. 399 
 
 contractual obligation, the plea {h) is a sufficient defense ; 
 for if the contract was not with the plaintiff but with 
 other persons, and the only charge is one of non-perform- 
 ance of the obligation created by it, no action can be 
 maintained, except by the person with whom the contract 
 was entered into. As to the second count, which charges 
 Jie defendant with negligence, and by which it appears 
 that the plaintiff's luggage was lawfully on the defend- 
 ant's railway, and being properly there, was lost by their 
 neglect, I should have been disposed to think that the 
 neglect and breach of duty charged constituted only a 
 breach of duty constituted by contract, and that the con- 
 tract being made with persons other than the plaintiff, 
 the plea [count ?] was liable to the same objection as the 
 last. But my learned brothers take a different view, and 
 think that the second count charges a wrong done, by 
 which the plaintiff is affected in his property, and for 
 which, therefore, independently of contract, he has a right 
 to obtain redress." {i) The ground of the judgment is 
 thus stated by Bramwell, B. : (/)— " The plaintiff says, 
 'You had my goods in your possession, and you delivered 
 them wrongly, no matter whether willfully or negligently ; 
 either way you did wrong.' The defendants reply, ' I 
 bargained with some one else to carry them.' But how 
 does this furnish an answer? The contiact is no concern 
 of the plaintiffs ; the act was none the less a wrong to 
 him." 
 
 On the other hand, a decision before referred [379] 
 to, {k) that a master can not sue a railway comixany 
 for damage to him from injuries to his servant when 
 traveling as a passenger by their railway, rests avowedly 
 on the giound that the duty of the company to carry a 
 passenger safely is a duty arising from a contract. " 1 
 Lake the law," it is said by Erle, C. J., "to be clear, that 
 where a servant is injured by matter ex delicto, and his 
 
 (/;) In cfTcct that tlic contract was not with the iilaintiff. 
 (*) Ibid., I.. R. 3 Ex. 13, per Keli.y, C. H. 
 (/) Ibid., 14, judjjmeni. of Ukamnvkli., B. 
 
 (k) Alton V. Midland Rail. Co., i<; C. B.. N. S., 213 ; 34 I- J- 2g2. C. P 
 »ee ante
 
 400 PAKTlhS TO ACTIONS. 
 
 master in consequence loses the benefit of his servicos, 
 the master may have an action against the wrong-doer 
 for that consequential damage. The distinction upon 
 which I rely is that in all cases where the master has 
 recovered damages in such an action the injury has been 
 occasioned to the servant by the tortious act of the 
 defendant. I find none where the damage has arisen by 
 means of a breach of contract. . . . Here, the action 
 is founded upon a contract entered into between the 
 company and the servant." . . . The liability of the 
 " defendants, if any, arises out of contract, and there is no 
 contract between" them and the plaintiff. (/) 
 
 That the courts have not been quite consistent in the 
 view they have taken of actions for torts founded on con- 
 tract is (it is submitted) clear. (;;z) But the difference of 
 the view entertained in the different cases is less than it 
 might at first sight appear ; for though such cases as 
 Austin V. Great Western Rail. Co., and Marshall v. York, 
 &c.. Rail. Co., {n) treat the obligation of carriers as exist- 
 ing independently of contract, the decision in these 
 [380] cases and others like them may be maintained on 
 the ground {0) taken by some of the judges, that a 
 contract did exist between the plaintiff and defend- 
 ants, i. <?., that in the one case the master, and in the other, 
 the mother contracted as agent for the plaintiff. Martin 
 V. Great Indian Rail. Co., (/) again, was not decided with 
 Lhe approval of Kelly, C. B., and is a somewhat peculiar 
 ;ase. It should further be noticed that the earlier cases 
 n which the nature of actions against carriers is consid- 
 ired, have reference to the admissibility of a plea in 
 
 (/) Ibid., iQ C. B., N. S., 236, 237, 239, judgment of Erle, C. J. 
 
 {m) Compare Martin v. Great Indian Rail. Co., L. R. 3, Ex. 9 ; 37 L.J. 27. 
 Ex. ; Austin v. Great Western Rail. Co., L. R. 2, Q. B. 442 ; 36 L. J. 2or, Q. 
 B. ; Marshall v. York, &c., Rail. Co., 21 . L. J. 34, C. P. ; 11 C. B. 655 ; Collett 
 V. London and Nonh-Western Rail. Co., 16 Q. B. 984, with Alton v. Midland 
 Rail. Co., 19 C. B., N. S., 213 ; 34 L. J. 292, C. P. ; Powell v. Leyton, 2 N. R 
 365-370 ; and see George v. Skivington, L. R. 5, Ex. i. 
 
 (m) L. R. 2, Q. B. 442 ; 36 L. J. 301, Q. B. 
 
 {o) 21 L. J. 34, C. P. ; ri C. B. 655. See esp. Austin v. Great Western 
 Rail. Co.. L. R. 2, Q. B. 447, judgment of Lush, J. 
 
 (/) L. R. 3 Ex. 9; 37 L-J- 27. Ex.
 
 GENERAL RULES. 401 
 
 abatement for non-joinder of a defendant, and that his 
 point may be considered to be one of procedure, and 
 therefore dependent upon the form in which an action is 
 brought without reference to its real nature. 
 
 Rule 80. — i. Persons who have a separate inter- 
 est and sustain a separate damage must sue separately. 
 
 2. Persons who have a separate interest, but sus- 
 tain a joint damage, may sue either jointly or sepa- 
 rately in respect thereof. 
 
 3. Persons who have a joint interest must sue 
 jointly for an injury to it. {q) 
 
 If A. and B. have separate rights and sustain separate 
 damage from the violation of these rights, A, and B. have 
 each a perfectly separate cause of action, and must sue 
 separately. If A. and B. have separate rights, yet the 
 act of the wrong-doer causes them a joint damage ; they 
 may treat the wrong either as a wrong to both of 
 them, and sue jointly for it, or as a wrong to each [381] 
 of them separately and sue separately for it. If, 
 lastly, A. and B. have a joint right, that is to say, if the 
 right invaded is not a right of A. singly, or of B. singly, 
 but one possessed by them in common, then they must 
 sue jointly for the wrong done. 
 
 For an assault, false imprisonment, and generally for 
 all injuries to the person, each person injured must sue 
 separately ; for the assault, imprisonment, &c., done to 
 tlie one is not the same as the assault, imprisonment, &c., 
 done to the other, {r) So also if a man says to A. and 
 B., " you have murdered M.," or imputes to them any 
 other crime, they can not join in one action against him 
 for speaking these words, but each of them must bring a 
 separate action ; for the wrong done to one is no wrong 
 done to the other, {s) 
 
 (y) Broom, Parties, 2nd ed., ss. 256-259 ; Corylon v. Lilhebye, 2 Wms. 
 Saund. 116. 
 
 (r) Coryton v. Lithebyc, 2 Wms. Saund. 117 a. 
 W Ibid. 
 
 26
 
 402 PARTIES TO ACTIONS. 
 
 When several owners of mills brought an action for 
 not grinding corn thereat, it was held that they might 
 join as phiintilTs, since, although their interests were 
 several, yet the not grinding at any of their mills was a 
 joint damage. So the dippers at Tunbridge Wells were 
 held entitled to join in suing a person who exercised 
 the office of dipper without being duly appointed; for, 
 although severally entitled to receive gratuities for their 
 separate use, yet with regard to a stranger disturbing 
 them in their employment, they were all jointly concerned 
 in point of interest. (/) So two or more partners may 
 join in an action of slander for words spoken of them in 
 the way of their trade. {71) 
 
 If A. and B. have a joint interest which is injured, or 
 in other words, if the right interfered with is a 
 [382] right possessed by A. and B. in common, they must 
 {x) join in an action for an interference with it. 
 Therefore, the joint owners of a chattel, and partners 
 generally, must join in an action for injury to the common 
 property, {y) 
 
 Rule 81. — The right of action for a tort can not 
 be transferred or assigned, {z) 
 
 This is merely an application to actions for tort of the 
 general principle that a chose in action is not assignable. 
 
 Rule 82. — Where several persons have a joint 
 right of action for a tort it passes on the death of 
 
 {t) Weller V. Baker, 2 Wms. Saund. 116, note 2. See Broom, Parties, 2nd 
 ed., s. 257. 
 
 (m) Cooke V. Batchelor, 3 B. & P. 150; 2 Wms. Saund. 117 a, 117 b; Le 
 P'anu V. Malcomson, i H. L. C. 637 ; Lindley, Partnership, 2nd ed., 481, 482. 
 As to actions by partners, see Chapter XXL 
 
 (jr) But see, for the effect of non-joinder of plaintiffs in actions of tort, 
 Chapter XXXIV. 
 
 (_)') Sedgworth v. Overend, 7 T. R. 279 ; Addison v. Overend, 6 T. R. 766 ; 
 Longman v. Pole, I Moo. & Mai. 223 ; Coryton v. Lithebye, 2 Wms. Saund 
 116 a. See Chapter XXL 
 
 {z) See Rule 6.
 
 GENERAL RULES. 
 
 403 
 
 each to the survivors, and on the death of the last 
 (if the right of action be one that survives) (a) to his 
 representatives.^ 
 
 The rule is the same as in actions on contract, {b) 
 Where the person injured can sue either separately or 
 jointly, the separate right of action passes, if it survives 
 at all, to the personal representatives of the deceased. 
 
 (ff) See Rules 92 and 93. 
 
 (b) See Rule 16. But the non-joinder of a plaintiff in action for tort has no 
 greater effect than that of enabling the defendant to plead the non-joinder in 
 abalemeat. See Rule 1 17. 
 
 I. In replevin upon the death of 
 the plaintiff, the executor will be 
 allowed to prosecute the suit. Mel- 
 lon V. Baldwin, 4 Ma-^s. 481 ; Reist 
 V. Heilbrenner, 11 Serg. & R. 301. 
 An action for diverting a water- 
 course dies with the plaintiff. 
 Holmes v. Moore, 5 Pick. 258 ; 
 Ten Eyck v. Runk, 31 N. J. L. 428. 
 Maryland statute of 1785 was only 
 to prevent the abatement of those 
 actions which did not die with the 
 person. Baltimore, &c., Ry. Co. v. 
 Ritchie, 31 Md. 199 ; Schott v. Sage, 
 4 Phila. 87. Maine statute pro- 
 viding that actions for trespass shall 
 survive is unqualified. Withee v. 
 Brooks, 65 Me. 18; Prescott v. 
 Knoles,62Me.2/8; Little v. Conant, 
 2 Pick. 527 ; Demond v. City of Bos- 
 ton, 7 Gray, 544. Action for bodily 
 injury by the default of defendant 
 survives under Vermont statutes. 
 Bradley v. Andrews, 5 1 Vt. 528 ; Cox 
 V. New York Cent., &c., Ry. Co., 1 1 
 Hun, 623. The statute allowing 
 actions for torts to survive have 
 been strictly construed. Drake v. 
 Curtis, I Cush. 409; Cutting v. 
 Tower, 14 Gray, 184. An action of 
 
 trespass quare clausum fregit sur- 
 vived to the co-plaintiffs. Boynton 
 V. Rees, 9 Pick. 531; and so an 
 action for obstruction of a right of 
 way, upon the death of one of two 
 co-plaintiffs, goes to the survivor. 
 Richardson v. Pond, 15 Gray, 389. 
 An action of ejectment does not 
 abate by the death of the lessee of 
 the plaintiff, though he be only a 
 tenant for life. Wilson v. Hall, 13 
 Ired. 489 ; Milliken v. Marlin, 66 
 111. 17 ; nor does an action for tres- 
 pass for mere profits ; Afundell v. 
 Springer, 71 Pa. St. 400; Means v. 
 Presbyterian Church, 3 Pa. St. 95. 
 When husband and wife joined in 
 an action on the case for obstruct- 
 ing a right of way appurtenant to 
 the inheritance of the wife, the hus- 
 band was allowed to proceed to re- 
 cover judgment after the death o( 
 his wife. Jefcoat v. Knott, 1 1 Rich. 
 654, The husband in this case 
 might have alone sued for damage 
 to such right as was exclusively his, 
 or he may have joined his wife for 
 such damage as was done ihcm 
 both.
 
 404 PARTIES TO ACTIONS. 
 
 CHAPTER XX. 
 
 PRINCIPAL AND AGENT. 
 
 Rule 83. — A principal (or employer) can never 
 sue for what is merely an injury to his agent (or 
 servant), nor an agent (or servant) for what is merely 
 an injury to his principal (or employer). 
 
 A principal or employer can in many cases sue for 
 what is called an injury to his servant, but the real ground 
 on which he sues is, as already pointed ou*t, not the 
 injur)'^ to his servant, but the injury to himself resulting 
 from or connected with the injury to his servant. So an 
 agent may in some cases sue for what is popularly called 
 an injury to his employer, e. g., a carrier can bring an 
 action for the conversion of goods confided to his care ; 
 but though this case is somewhat peculiar, the ground 
 on which the agent sues is not the injury to his employer, 
 but the interference with his own rights as possessor oi 
 the goods, {a) 
 
 {a) See ante, and post, 458.
 
 PARTNERS. 405 
 
 CHAPTER XXI. 
 
 PARTNERS. 
 
 Rule 84. — All the partners in a firm, or mem- 
 bers of an unincorporated company, {a) should join 
 in an action for wrong done to the firm or company. 
 
 As a firm is nothing- but the persons who compose 
 it, {b) the rules with reference to actions by partners are 
 simply applications of the rules as to joinder of plaintiffs 
 in an action for tort, {c) Where an injury has been done 
 to their joint rights, e. g., where the property of the firm 
 has been converted, all the members of the firm. A., B. 
 and C, must join in an action for the wrong. 
 
 The same wrongful act may give a separate right 
 of action to the individual partner A., and to the firm 
 collectively, i. e., to all the partners, A., B., and C. ; for the 
 same act may interfere at once with the individual rights 
 of A., and with the joint rights of A., B., and C. " These 
 doctrines are illustrated by actions for libel. A libel 
 can clearly be made the subject of an action in the name 
 of all the partners, if the firm has been damnified ; {d) and 
 if the libel reflects directly on one partner, and through 
 him on the firm, two actions will lie, viz., one bv 
 the party libeled, and the other by him and his [385] 
 co-partners ; but the damage in the first action 
 must not appear to be joint, nor must that in the second 
 
 (a) An unincorporated company, as already pointed out, is in snhsiance a 
 firm. See, however, as to companies empowered to sue by a public oflicer, 
 ante. Sec Rule 117. 
 
 {/>) .See ante. (r) Rule Po. 81. 
 
 (li) Cooke V. FJatchelor, 3 B. & P. 150 ; Foster v. Lawson. 3 Ring. 4 2} 
 Williams v. Beaumont, ro Bing. 260; Metropolitan Saloon Company v 1 law- 
 kins, 4 H. & N. 87 ; 28 L. J. 201, Ex.
 
 4o6 PARTIES TO ACTIONS. 
 
 appear to be confined to the libeled partner only, [e) If 
 one partner is libeled, and the firm can not be shown to 
 have been damnified, an action for the libel should be 
 brought in the name of the individual partner aggrieved, 
 and not by the firm ; (/) and he may sue alone, although 
 the libel more particularly affects him in the way of his 
 business." i^g) 
 
 Change of partners. — All the partners should join who 
 were members of the firm at the time when the wrong 
 was committed. If, therefore, X. converts the goods of 
 A., B., and C, and before any action is brought, C. leaves 
 the firm and D. enters into it, the persons who should 
 properly sue for the tort are A., B., and C, since the 
 wrong was an interference with their right of possession ; 
 and similarly it would seem that an action for a libel on 
 the firm of A. & Co. ought to be brought by the persons 
 who composed the firm at the time of the publication of 
 the libel. 
 
 Can one partner S7ie another for tort ? — One partner can, 
 of course, sue another for torts unconnected with the 
 partnership. It seems, moreover, that where one partner 
 commits a wrong against his fellow-partners, the latter 
 can join in suing him. " If a person," says Lord Tenter- 
 den, " colludes with one partner in a firm to enable hinj 
 to injure the other partners, they can maintain a joint 
 action against the persons so colluding." (ft) 
 
 From the fact that partners are joint owners of the 
 partnership property, combined with the rule that the 
 same person can not be both plaintiff and defendant, (z) it 
 results that one partner often can not bring trover 
 [386] against another under circumstances in which the 
 action would be maintainable against a stranger. 
 A joint owner of goods can not maintain trover against 
 his co-owner in respect of any act of the latter consistent 
 
 (e) Harris v. Bevington, 8 C. & P. 708 ; Forster v. Lawson, 3 Bing. 452 ; 2 
 Wms. Saund. 117 b. ; Haythorne v. Lawson, 3, C. & P. 196. 
 (/) Soloman v. Med^x, i Stark, 191. 
 {g) X Lindley, Partnership, 2nd ed., 481. 
 {h) Longman v. Pole, Moo. & Mai. 233. 
 (t) Rule 5.
 
 PARTNERS. 407 
 
 with his ownership ; but if the latter is guilty of an act 
 inconsistent with joint ownership, as a complete destruc- 
 tion of the goods or sale of them in market overt, it 
 amounts to a conversion, for which the joint owner can 
 sue. {J) Thus, where A. and B. were members of a 
 friendly society, and A. was entrusted with a box contain- 
 ing the sums of money subscribed, and was bound b\' 
 bond to keep it safely, it was held, that he could not 
 maintain trover against B., and against a stranger, when 
 B., having got possession of the box, carried it away and 
 delivered it to the stranger, {k) So a mere sale by B., 
 not in market overt, does not amount to a conversion, or 
 give the joint owner, A., a right to sue him. (/) So, the 
 creation of a lien by one of two joint owners does not 
 amount to a conversion. But if B. sells the goods in 
 market overt, so as to pass the whole property to the 
 purchaser, or if he destroys them, if, in short, he does 
 any act totally inconsistent with the joint ownership, this 
 is a conversion, and A. may bring trover against him. (w) 
 
 Rule 85. — An action for an injury to the property 
 of a firm must be brought : 
 
 1. On the bankruptcy {n) of the firm, by the 
 trustee or trustees of the bankrupts ; 
 
 2. On the bankruptcy of one or more part- 
 ners, by the solvent partners, together with the [387] 
 trustee or trustees of the bankrupt partner or 
 partners, (o) 
 
 The explanation of this rule, in reference to actions 
 ex contractu, (/) is applicable to actions ex delicto. 
 
 (/') Iliggins V. Thomas, 8 Q. 15. 908 ; Jones v. Brown, 25 L. J. 34;,, Ex.; 
 Mayhew v. Ilcrrick, 7 C. IJ. 229. 
 
 (Jt) Holliday V. Camscll, 8 T. R. 358 
 
 (/) M.-iyhew v. Hcrrick, 7 C. IJ. 229. 
 
 (»/) See Hullen, I'lcadings, 3rd ed., 272, 716. 
 
 («) Rules 89 and 90. 
 
 (o) Sec as to unincorporated companies, anle. 
 
 (/) See antf.
 
 4oS PAKTIJiS TO ACTIONS. 
 
 An action for tort can, liowcvcr, st)metimcs be Dronghl 
 by a solvent partner and the trustee, when it could not 
 have been maintained by the solvent partner and the 
 bankrupt if the latter had remained solvent, for the trust- 
 ee's title relates or dates back to the act of bankruptcy, 
 and he, therefore, can often treat dealings of the bankrupt 
 as null. The trustee can also treat as void some acts ot 
 the bankrupt, on account of their fraudulent character. 
 Hence, if A. and B. are paxtners, and B., after he has 
 committed an act of bankruptcy, indorses a- partnership 
 bill, such indorsement confers no title on the indorsee, 
 and A. and B.'s trustee can bring an action against the 
 indorsee for it. {q) So, where A. and B. were partners, 
 and B. fraudulently indorsed certain bills of exxhange 
 belonging to the partnership to X., in payment of a pri- 
 vate debt, X. being aware of the fraud, it was held on 
 B.'s bankruptcy that the assignees might disaffirm the 
 transaction as a fraudulent preference, and join with A. 
 in an action against X. (r) 
 
 As the trustee of a bankrupt becomes a tenant in 
 common {s) with the solvent partner of the property ol 
 the firm whereof the bankrupt was a member, he fre- 
 quently is unable to make use of the doctrine of relation, 
 m order to recover the bankrupt's interest in goods which 
 have been sold by the solvent partner after the commis- 
 sion of the act of bankruptcy, [t) That is to say, i: 
 [388] A. and B. are partner;,, and after the commission ol 
 an act of bankruptcy by B., A. sells partnership 
 goods to X., B.'s trustee can sue neither A. nor X. for the 
 value of the goods, though i^ B., not being in partnership, 
 and after the commission of an act of bankruptcy, sohl 
 goods to X., who knew of the act of bankruptcy, the 
 trustee could, even though X. had paid for the goods, 
 bring an action of trover against him. 
 
 ig) Thomason v. Frere, 10 East, 418. 
 (r) Heiibut v. Nevill, L. R. 4, C. P. 354. 
 (s) See ante. 
 
 (t) Fox V. Hanbury, Cowp. 445 ; Smith v. Stokes, 1 East, 363 ; Buckley v. 
 Barber, 6 Ex. 182 ; 2 Lindley, Partmrship, 2nd ed., 1118-1123.
 
 HUSBAND AND WIFE. 409 
 
 CHAPTER XXII. 
 
 HUSBAND AND WIFE. 
 
 Rule 86.— A husband and wife must sue jointly 
 in three cases : — 
 
 1. For injuries to the person, character, or prop- 
 erty of the wife, committed before marriage ; 
 
 2. For injuries to the person or character of the 
 wife committed during coverture ; and, 
 
 3. For injuries for which the wife must sue as 
 executrix or administratrix, {a) 
 
 For all wrongs done to a woman before marriage, {b) 
 she and her husband must sue jointly during coverture. 
 If, for example, X. assaults B., an unmarried woman, or 
 trespasses upon her land, or appropriates her goods, and 
 B. afterwards marries A., an action for the wrong must 
 be brought in the joint names of A. and B. The action 
 is in fact brought by B., and A. is joined merely (to use 
 the technical expression) for the sake of conformity ; i. e., 
 to comply with the rule that a married woman can not 
 sue alone. The same rule, it would seem, applies if X. 
 libels B., or slanders her before marriage. If, however, 
 the slanderous expressions are not words actionable 
 in themselves, but actioiiable only because they [390] 
 cause damage, and tlic damage results from them 
 
 (n) See Bullen, Plcadin-^s, 3r<l fd., 338, 339. l-'or the explanation of llie 
 rule that a wife can not, during coverture, sue without her husband, and of the 
 exceptions iherito, see ante. Tlie rule and the exceptions apply as well to 
 actions for tort as to actions on contract. 
 
 (li) Milner v. Milnes. 6 T. R. 627, 631. See Lush, Practice, 3rd ed., 158 ; 
 Bullen, Pleadings. 3rd ed. 339.
 
 410 PA/^T//:S TO ACTIONS. 
 
 after the marriage, A., the husband, must apparcncly sue 
 alone, (r) 
 
 To the rule uiuler consideration there are to be found 
 one or two apparent exceptions. As " all the personal 
 chattels of the wife [vest] by the marriage in the husband, 
 where sfoods bailed or come to the hands of another before 
 marriage are detained afterwards, the husband may sue 
 alone as on his own possession. (^/) . . . If a nuisance 
 be erected before marriage, and continued afterwards, 
 producing a temporary damage to the husband, he alone 
 may sue. ie) If a feme sole possessed of a term for years 
 in a close has in right thereof a way through an adjoining 
 field, and the owner obstructs the way by building on it, 
 and the feme marries, the husband may maintain an action 
 for the continuance of the obstruction." (/) i g) But in 
 these and like cases the husband's right to sue alone 
 depends upon an injury to him taking place after the 
 marriage, e. g., by the continuance of the obstruction to 
 the right of way, and it is often the case that there may 
 be two actions, one in the name of the husband and wife 
 for the original wrong, and another in the name of the 
 husband only for a continuance of it. (//) 
 
 With respect to injuries to the person of the wife dur- 
 ing coverture, the husband and wife must join in suing. 
 But the wrongful act, e. g., an assault upon the wife, may 
 involve two distinct wrongs, and thus give two distinct 
 causes of action. The first is the assault upon the wife, 
 and the second is the damage caused thereb}- 
 [391] (through loss of service) to the husband. H) The 
 
 (c) The offense sued for is here in reality the causing of damage by (.ertain 
 slanderous expressions, and as this injury is not committed until the dainnge is 
 caused, /. e., until after the marriage, it affords no real exception to the princi- 
 ple that a wife must join in an action for wron^js done to her before marriage. 
 Compare Saunders v. Edwards, I Sid. 95 ; Coleman v. Harcourt, I Lev. 140, 
 cited Saville v. Sweeney, 4 B. & Ad., 514 ; Selwyn, N. P., 13th ed., 245 ; and 
 see Backhouse v. Bonomi, 9 H. L. C. 403. 
 
 {d) Blackburne v. Greaves, 2 Lev. 107 
 
 {e) Frosdick v. Sterling, 2 Mod. 269. 
 
 (/) Baker v. Brereman, Cro. Car. 419. 
 
 Ig) Lush, Practice, 3rd ed., 158, 159. 
 
 {h) Ibid. 
 
 (/) See ante.
 
 HUSBAND AND WIFE. 411 
 
 husband can not sue alone merely for the injury to the 
 wife, but he may sue alone for the damages occasioned 
 thereby to himself solely. On the other hand, the 
 husband and wife can not, in an action brought solely for 
 the injury to the Avife, claim compensation for the injury 
 to the husband from the loss of the wife's services. In 
 order to obtain full compensation two actions used to be 
 necessary : one by the husband and wife for the injury to 
 the wife ; another by the husband alone for the damage 
 caused thereby to him. By the Common Law Procedure 
 Act, 18^2, s. 40, " in any action brought by a man and his 
 wife for an injury done to the wife, in respect of which 
 she is necessaril}'^ joined as co-plaintiff, the husband may 
 add thereto claims in his own right ; and separate actions 
 brought in respect of such claims may be consolidated, it 
 the court or a judge shall think fit; provided, that in the 
 case of the death of either plaintiff, such suit, so far only 
 as relates to the causes of action, if any, which do not 
 survive shall abate." This section is not imperative, and 
 after a recovery in the joint action for the injur}^ to the 
 wife, the husband may bring a separate action tor his 
 claim in his own right in respect of the same injury. {J) 
 The claims which the husband may add in his own right 
 are not limited to those which arise consequentially from 
 the injury to the wife, {k) (/) 
 
 In like manner, in an action for slander of the wife, it the 
 words are actionable per se, the husband and wife must 
 join for the direct injury ; im) but the husband must sue 
 alone for consequential damage ; {n) and so also, if the 
 words are not actionable in themselves, but only 
 because they cause damage ; (^) and now (though [392] 
 the husband may sue alone for the damage to him- 
 i-elf) there may, under the section of the Common Law 
 
 {J) Brockbank v. Whilehavcii lunction Rail. Co., 7 II. & N. 834 , 31 L, 
 J. 349. Ex. 
 
 (k) Ilemstead v. Phrt-nix Gas Co., 3 II. & C. 745 ; 34 L. J, 108, Ex. 
 
 (/) I?ulkn, Pleadings, 3:d ed„ 338. 
 
 (/«) Dengate v. Gardiner, 4 M. & W. 5. 
 
 («) II)id. 
 
 (0) Saviile v. Sweeney, 4 B. & Ad. 514 ; Broom, Parties 2nd ed., s. 2S1.
 
 412 PARTIHS TO ACTIONS. 
 
 Procedure Act, 1852, before cited, be combined in one 
 declaratiiMi claims for the direct injury to the wife, and 
 for the indirect or consequential damage to the husband. 
 If the slander is actionable only because of the damage it 
 causes, since that damage is damage to the husband, he 
 must sue alone, and the wife can not join. 
 
 Where a wife has a right of action in a representative 
 character as executrix or administratrix, husband and 
 wife must join in suing. (/) 
 
 Effect of death. — In cases where the wife must join, 
 the right of action remains on the death of her husband 
 in the wife, and she, and not her husband's representa- 
 tives, is the proper person to sue for the injury ; on the 
 death of the wife, the right of action passes to her repre- 
 sentative, unless the right of action depends upon her 
 character of executrix or administratrix, in which case 
 it passes to the representative of the testator or intestate. 
 
 Effect of divorce. — Divorce, it seems, has the same 
 effect on the wife's rights of action as the death of the 
 husband. (^) 
 
 Rule 87. — A husband may sue either alone 01 
 jointly with his wife for all injuries done during 
 coverture to real property, of which the husband and 
 wife are seised, or to which they are entitled in right 
 of the wife, (r) 
 
 [393] The rule as to the joinder of husband and wife in 
 
 actions for injuries in respect of the latter's real 
 property during coverture, is not quite clear. In many 
 cases the husband and wife may sue jointly, {s) It is also 
 clear that in some cases the husband may sue alone. 
 
 (p) Broom, Parties, 2nd ed., s. 286 ; Serres v. Dodd, 2 15. & P. 407 ; Roper, 
 Husband and Wife, 2nd ed., 189 ; Thompson v. Pinchell, ir Mod. 177. 
 
 {q) See ante ; Capel v. Powell, 34 L. J. 168, C. P. ; Head v. Briscoe, 5 C. 
 & P. 484. Chapter XXX. 
 
 {t'j Bullen, Pleadings, 3rd ed., 339; Bidgood v. Way, 2 Blackstone, 1236; 
 Wallisv. Harrison, 5 M. & W. 142 ; I Wms. Saiind. 291 m. 
 
 {s) Co. Litt. 185.
 
 HUSBAXD AND WIFE. 413 
 
 Where, for example, the husband having an interest in 
 the wife's real estate, grants leases thereof during their 
 joint lives, reserving the rent to himself, and making his 
 wife no party to the lease, he can sue alone for damage to 
 his reversionary estate, (/) and the husband frequently 
 may sue alone for damage which does not affect the sub- 
 stance of the wife's freehold estate, as for breaking and 
 entering into a close and carrying away the grass, though 
 in this case he might also sue jointly with his wife, {it) 
 If the husband is the actual occupier of his wife's freehold 
 lands and tenements, he may sue alone for all damage 
 done to his beneficial occupation and enjo3"ment of the 
 property, {v) The general rule, therefore, seems to be, 
 that for injuries in respect of the wife's real property, the 
 husband has usually the option of suing either alone or 
 jointly with his wife ; but it is possibly subject to the fol- 
 lowing exception : 
 
 Exception. — Where a permanent injury is done to the wife't 
 freehold. 
 
 When the wrong is committed " on the wife's freehold 
 or inheritance, and it goes to affect either the title or the 
 substance of the estate, the wife is a necessary party, {x) 
 For cutting down trees, removing the soil, diverting 
 water, erecting a nuisance, &c., both must join. So, the 
 wife must join in detinue or trover for the title deeds; {y) 
 or slander of her title, and for a deed granting her 
 a rent-charge for life." (.sr) (a) Such deeds, &c., it [394] 
 may be remarked, seem to be considered part of 
 the realty, and, therefore, not to fall under the rule with 
 regard to injuries with respect to personalty, {b) 
 
 (t) Wallis V. Harrison, 5 M. & W. 142 ; i Wms. Saund. 291 m. See Adcli- 
 son, Torts, 3rd ed., Q17. 
 
 (m) Lush, Practice. 3rd ed., 160. 
 (v) Addison, Torts, 3rd ed., 917. 
 (x) Hacon, Abr., Baron and Feme, K. 
 (y) I Kill., Abr/, 347. 
 (t) Noy, 70. 
 
 (a) Lush, Practice. 3rd ccL, 160. 
 
 (b) If the wife's property has, prior to tlic marriage, been conveyed to trust
 
 414 PARTIES TO ACTIONS. 
 
 DeatJi. — In cases where the wife may join in suinj^, it 
 would seem that on the death of the husband the right of 
 action passes to the wife, and on the death of the wife to 
 the husband. 
 
 Rule 88. — The husband must sue alone in respect 
 of any injuries to personal property committed dur- 
 ing coverture. 
 
 As all the personal property of the wife vests in the 
 husband exclusively, he alone can sue for injuries to it. 
 The right to sue for such injuries never having been the 
 wife's, it remains her husband's on her death, and on his 
 death passes to his representatives, [c) 
 
 ees, the husband will have no legal interest in the property, and no right to 
 maintain an action for any injur)' that may be done to it. (Addison, Torts, 3rd 
 ed., 917.) 
 
 {c) Non-joinder and Mis-joinder. — For the results of errors as to joinder in 
 action by husband and wife, see Rule 32. The remarks there made apply 
 mutatis mutandis, to actions for tort. 
 
 Bankruptcy. — Upon the bankruptcy of the husband, the trustee in bank- 
 ruptcy must join with the wife in suing upon causes of action in right of the 
 wife, which, if vested in the husband, would pass to the trustee ; as for a con- 
 version of the wife's goods before marriage, see Richbell v. Alexander, 10 C. B., 
 N. S., 32.J ; 30 L. J. 268, C. P. ; Sherrington v. Yates, 12 M. & W. 855. See. 
 Chapter XVII.
 
 BANKRUPT AND TRUSTEE. 415 
 
 CHAPTER XXIII. 
 
 BANKRUPT AND TRUSTEE. 
 
 Rule 89. — The trustee {a) and not the bankrupt 
 must sue for injuries to the real or personal prop- 
 erty of the bankrupt committed before the bank- 
 ruptcy. 
 
 As the object ot the law {b) is to benefit the creditors 
 by making all the pecuniary means and property of the 
 bankrupt available to their payment, it has in furtherance 
 of this object been construed largely so as to pass, not 
 only what in strictness may be called the property and 
 debts of the bankrupt, but also those rights of action to 
 which he was entitled for the purpose of recovering in 
 specie, real or personal property, or damages in respect ot 
 that which has been unlawfully diminished in value, with- 
 held or taken from him. {c) This result is now directly 
 effected by the statutory enactment which passes the 
 bankrupt's things in action to his trustee, {d) It X. con- 
 verts the goods of A., or injures A. by a fraudulent 
 misrepresentation; {e) or by erecting a nuisance, [396] 
 decreases the value of the land of A., and A. there- 
 
 (a) The trustee can certainly sue in all cases in which the assignees could 
 sue ; but it is not clear whether he can not sue in many cases in which they 
 could not, since the bankrupt's things in action pass to the trustee under bank- 
 ruptcy Act, 1869, ss. 4, 15, 17. When, therefore, in the course of this chapter, 
 it is laid down that, in certain cases the trustee can not sue, the statement 
 must be received as representing the former law, and as being of duublful cor- 
 rectness under the present Act. 
 
 (b) See ante. 
 
 (f) Rogers v. Spence, 13 M. & W. 580. 53l- Hroom, I'arlics, 2nd ed.. s. 
 
 291 a. 
 
 (d) Bankruptcy Act, l86g. ss. 4, 15. 
 
 {e) Hodgson V. Si<lney, L. R. i, Ex. 313. See, also. Hancock v. CalTyn. 8 
 Bing. 358; Broom. Parties. 2nd ed., s. 2oo.
 
 4i6 PARTIES TO ACTIONS. 
 
 upon becomes bankrupt, A.'s rii^ht to sue vests \n tne 
 trustee. " In no case where the right of action, being of 
 such a nature as will pass to the assignees, has accrued to 
 the bankrupt in respect of matter before the bankruptcy, 
 can the bankrupt sue. Even a disclaimer of the assignees 
 will in such a case enure only for the benefit of the defend- 
 ant, and not for that of the bankrupt." (/) If, that is to 
 say, X. converts A.'s goods before A.'s bankruptcy, A. 
 can not, even with the permission of his trustee, sue X. 
 for the wrong, {g) 
 
 The trustee can further sue in several instances in 
 which the bankrupt, even had he remained solvent, would 
 have had no cause of action. {It) 
 
 The trustee, in the first place, owing to his title relating 
 back to the commencement of the bankruptcy, i. e., the 
 date, speaking generally, at which the act of bankruptcy 
 was committed, {i) can bring trover against any one who 
 with knowledge of the act of bankruptcy has purchased 
 his goods from the bankrupt. If, that is to say, A. com- 
 mits an act of bankruptcy, and then sells goods to X., 
 who knows of the act having been committed, X., though 
 he may have paid the full price of the goods, is liable to 
 an action of trover by A.'s trustee, who, in other words, 
 is (subject to restrictions for a protection of bona fide pur- 
 chasers) {k) able to treat the goods as his own, and like 
 any other owner, maintain an action against a person who 
 has bought them from a vendor who had no right 
 [397] to sell them; (/) so the trustee can bring trover 
 ? ;e,ainst a sheriff who, after notice of an act of bank- 
 ruptcy takes the bankrupt's goods in execution and sells 
 •■hem \'"i) 
 
 1'/'. trustee, in the second place, becomes the owner 
 
 (/) ■/ '.-.riffith & Holmes, Bankruptcy, 2nd ed., 934, 935. 
 
 {g) ':,'.• Hillaiy v. Morris, 5 C. & P. 6 ; Lea v. Telfer, i C. & P. 146. For 
 the effect (,\ the bankruptcy of a plaintiff after the commencement of an action, 
 tee ante. 
 
 {h) 2 L'ndley, Partnership, 2nd ed., 1097. 
 
 (i) Ba-iV.ruptcy Act, 1869, s. il. 
 
 \k) Ibid., s. 95. 
 
 (/) See Chapter XXV. 
 
 {m) See Cooper v. Chitty, 2 Smith, L. C, 6th ed., 435, and notes.
 
 BANKRUPT AND TRUSTEE. 417 
 
 of goods of which the bankrupt is allowed to have pos- 
 session and to be reputed owner by the true owner at the 
 commencement of the bankruptcy. (;/) Hence, if X., their 
 true owner, after knowledge of the commission of an act 
 of bankruptcy, takes them away from A., whom he has 
 suffered to be their reputed owner, A.'s trustee can sue X. 
 The trustee, in the third place, can, independently of 
 the rights which he derives from the relation of his title, 
 treat many transactions of the bankrupt's as void on the 
 ground of fraudulent preference, and thus obtain the 
 right to sue persons to whom the bankrupt has conveyed 
 property. {0) 
 
 Exception, — Trespass to land before bankruptcy. 
 
 The trustee can not sue for a trespass to the land of 
 the bankrupt, or for a mere seizure of the plaintiff's goods 
 before bankruptcy. (/) For such trespass or mere seizure 
 an action must be brought, if at all, by the bankrupt. It 
 admits, however, of doubt whether the trustee can not 
 sue for any damage which the trespass or seizure may 
 cause to the value of the property. This exception 
 appears to be merely an extension of the rule that the 
 bankrupt must sue for injuries to his person or feel- 
 ings, {q) 
 
 Rule 90. — For injuries to property acquired [398] 
 by the bankrupt after bankruptcy, either the 
 trustee may sue or the bankrupt may sue if the trustee 
 does not interfere. 
 
 Trustee may sue. — The trustee may treat the property 
 o[ the bankrupt as his own, and sue for any interference 
 with his rights over it. 
 
 (m) Bankruptcy Act, i86g, ss. ii, 15. 
 
 (0) I Griffith & Holmes, Hankruptcy, 2nd ed., 132. 
 
 { p) Ibid., 302; Brewer v. Dew, 11 M. & W. 625; 12 L. J. 448, Ex. 
 Rofjcrs V. Spence, 13 M. & W. 571 ; 12 CI. & F. 700 (Ex. Ch.) ; Clark v. Cal- 
 vert, & Taunt. 742. 
 
 {g) See Rule 91. 
 27
 
 41 8 PARTIES TO ACTIONS. 
 
 Bankrupt may sue. — Though the property of a bank- 
 rupt vests in the trustee, yet after he has been adjudicated 
 a bankrupt, and before he has obtained the order of dis- 
 cliargc, he may acquire property in chattels which none 
 but the trustee can defeat, (r) Hence, if A. becomes 
 bankrupt, and after his bankruptcy purchases goods, his 
 trustee has a right to take them from him, but no one else 
 has, and A. ma}' maintain an action of trover against 
 any one who does so ; since if the trustee suffers him to 
 treat such after-acquired property as his own, no third 
 person can defend himself from an action by setting up a 
 title upon which the trustee does not think fit to insist, {s) 
 But he can neither retain the property against the trustee, 
 (/) nor maintain trespass for seizing his goods against any 
 one who, after the trespass, obtains a surrender of the 
 trustee's interest in the goods seized, since this is in fact 
 a ratification of the seizure by the trustee, who has a 
 right to take the goods, {ji) 
 
 [399] Rule 91. — The bankrupt alone can sue foi 
 
 injuries to his person, feelings, or reputation. 
 
 " Assignees of a bankrupt are not to make profit of a 
 man's wounded feelings ; causes of action which are 
 . . . . purel}" personal do not pass to the assignees, 
 but the right to sue remains with the bankrupt." iv) 
 Hence, the trustee can not sue for the seduction of the 
 bankrupt's daughter, {x) for libel, {^y) or for an assault. {£) 
 The principle of this rule has received a wide extension : 
 " Causes of action, .... arising out of a wrong, per- 
 
 (r) Webb v. Fox, 7 T. R. 398 ; Fowler v. Down, i B. & P. 48. See Fyson 
 V. Chambers, 9 M. & W. 460. See i Griffith & Holmes, Bankruptcy, 2nd ed., 
 302. 
 
 {$) See Hancock v. Caffyn, 8 Bing. 366. 
 
 (/) Niasv. Adamson, 3 B. & Aid. 225. 
 
 {it) Hull V Pickersgill, I B. & B. 282 ; Fyson v. Chambers, 9 M. & W. 46a 
 
 {v) Howard v. Crowther, 8 M. & \V. 604, per Abinger, C. B. 
 
 (x) Ibid. 
 
 {y) Ibid. 
 
 (2) Drake V. Beckam, ri M. & W 315,
 
 BANKRUPT AND TRUSTEE. 419 
 
 sonal to the bankrupt, for which he would be entitled to 
 a remed}- whether his property were diminished or 
 impaired or not, are clearly not within the letter, and have 
 never been held to be within the spirit of the enactments 
 {with regard to bankruptcy], even in cases where injuries 
 of this kind may have been accompanied or followed by 
 loss of property, and to this class .... the action 
 of trespass qii. cl. fr., and that of trespass to the goods of 
 the bankrupt must be considered to belong. These 
 rights of action are given in respect of the immediate 
 and present violation of the possession of the bankrupt, 
 independently of his rights of property, — they are an 
 extension of that protection which the law throws around 
 the person, and substantial damages may be recovered in 
 respect of such rights, though no loss or diminution in 
 value of property may have occurred, and even where 
 such an incident has accompanied or follojved a wrong of 
 this description, the primary personal injury to the bank- 
 rupt, being the principal and essential cause of action 
 still remains in him, and does not vest in the assignee 
 either as his property or his debts." {a) There is a 
 difficulty in determining the exact limits of this [400] 
 rule. If a trespass to land or goods is to be con- 
 sidered in the light of a merely personal wrong, such, 
 e. g., as libel, it would seem to follow that the trustee can 
 not bring an action for a trespass to the bankrupt's goods 
 acquired after bankruptcy ; yet the most the cases seem 
 actually to decide is that the assignees could not sue for a 
 mere trespass committed before bankruptcy, {b) It has 
 been suggested, {c) that where a trespass committed before 
 the bankruptcy occasions damage to the bankrupt's 
 property, " it may be that the law will give an action to 
 the bankrupt for the personal injury sustained by him, 
 and to the [trustee] for [the] injury done to the prop- 
 erty." {d) But this view, though a strict result of the 
 
 (.1) Rogers v. Spciice, 13 M. & W. 580, 581, per CuklAM ; Clark v. C;ilvert 
 6 Taunt. 742; Topham v. Dent, 6 Hinij. 515 ; Broom's Parlies, 2nd ed., 291 a 
 {b) See I Griffith & Holmes, Bankruptcy. 2nd cd., 302. 
 (c) Ibid. 
 (</) Rogers V. .ip-.nce, 12 CI.& Fin. 700, 720, per Lori Camimiell.
 
 420 rARTIES TO ACTIONS. 
 
 principle that each person mnst sue for the injury done 
 to himself, is opposed to judicial dicta in a recent case, {e) 
 Where a bankrupt sued an attorney, firstly, for negli- 
 gence in defending an action, whereby the then defendant 
 (the bankrupt) was charged in execution ; and secondly, 
 for negligence, whereby the plaintiff lost rents, &c., it 
 was held that for the first cause of action the bankrupt 
 had a right to sue because it arose out of a personal 
 wrong, for which the party would be entitled to sue 
 whether his property were injured or not, and which 
 therefore did not pass to the assignees ; but that for the 
 other cause of action the plaintiff could not sue, because 
 it arose from an injury to the property, and passed there- 
 fore to the assignees. (/) 
 
 A bankrupt can not maintain an action for what 
 [401] is in reality an injury to property, by alleging an 
 injury to, his character and credit resulting there- 
 from, {g) 
 
 {e) See Hodgson v. Sidney, L. R. i Ex. 313, esp. 315, 316, judgment of 
 Bramwell, B. 
 
 ( /) Wetherell v. Julius, 19 L. J. 367, C. P. ; 10 C. B. 267. The damages 
 recovered during tiie continuance of the bankruptcy are, it seems, the property 
 v)f the trustee. Bankruptcy Act, 1869, s. 15, cl. 3, and s. it. 
 
 (g) Hodgson V. Sidney, L. R. i Ex. 313. 
 
 It may be worth while to call attention to the fact that the question 
 whether a bankrupt can, in any case whatever, commence an action in his own 
 name during the continuance of the bankruptcy is, under the present Act, at 
 least open to doubt, since that Act transfers to the trustee the bankrupt's 
 things in action. 
 
 See Rule 40 as to the effect of bringing an action in the name of the bank- 
 rupt when it ought to be brought in the name of the trustee, or vice versa.
 
 EXECUTORS AND ADMINISTRATORS. 421 
 
 CHAPTER XXIV. 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 Rule 92. — The personal representatives of the 
 deceased (z. e., his executors or administrators) can 
 sue for injuries to the property of the deceased done 
 during his lifetime. 
 
 " It was a principle of the Common Law, that if an 
 injury was done either to the person or property of 
 another, for which damages only could be recovered in 
 satisfaction, the action died with th-e person to whom, or 
 by whom, the wrong was done. Thus where the action 
 was founded on any malfeasance or misfeasance, was a 
 tort, or arose ex delicto, such as trespass for taking 
 goods, «S:c., trover, false imprisonment, assault and bat- 
 tery, slander, deceit, diverting a watercourse, obstructing 
 lights, escape, and many other cases of the like kind, 
 where the declaration imputes a tort done either to the 
 person or property of another, and the plea must be 
 'not guilty,'— the rule was actio personaHs moritur cum 
 persona." {a) This principle has, as regards an execu- 
 tor's or administrator's right to sue for wrongs to his tes- 
 tator, been so far modified that what was formerly the rule 
 may now be fairly considered the exception. But it is of 
 importance to remember that this right to sue is an cxccj)- 
 tion to the maxim of the common law, and depends almost 
 entirely upon statutory provisions, {b) 
 
 Injuries to the personal property.— T\\q right to [403J 
 sue for injuries to the testator's or intestate's per- 
 
 (a) I Williams, Executors. 6lh cil.. 743. 
 
 (b) Not wholly, for rcplt-vin and (icliiiuc could i)u hnniglit independently 
 of statute. See I Williams, Executors. 6th cd.. 7.10.
 
 422 PARTfES TO ACTIONS. 
 
 sonal estate depciuls upon 4 lulw. III. c. 2 (extended by 
 15 Edw III c. 5). 
 
 The statute lias been liberally construed, so that an 
 executor or administrator has now the same actions for 
 any injur)- done to the personal estate of the deceased 
 durino; his lifetime, whcreb}' it has become less beneficial 
 to the executor or administrator, as the deceased himself 
 might have had. {c) So the executor, etc., may bring 
 trespass or trover, {d) and may bring an action against 
 the sheriff for a false return, {e) and generally may sue 
 for injuries done to the personal estate of the deceased 
 during his lifetime. (/) 
 
 Injuries to real property. — The right to sue for injuries 
 done to the real estate of the deceased in his lifetime 
 depends on 3 «& 4 Will. IV. c. 42, s. 2. 
 
 Under this statute an executor or administrator may 
 bring an action for injuries to the real estate of the testa- 
 tor or intestate, provided that : 
 
 1st. The injury was committed within six calendar 
 nonths before the death of the deceased ; 
 
 2nd. The action is brought [i. e., the writ is sued out) 
 <vithin a year after the death of the deceased. 
 
 Under this act, if X. diverts A.'s watercourse, obstructs 
 his lights, trespasses on his land, or commits any other 
 wrong of the like riature, and A. dies within six months 
 after the commission of the wrong, A.'s executor, &c., can 
 sue B., provided that the action be commenced within a 
 year after A.'s death. 
 
 The restrictions imposed on actions for injuries to the 
 
 real estate do not apply to actions for injuries to 
 
 [404] the personal estate. If, for example, X. converts 
 
 A.'s goods, and A. dies a year after the conversion, 
 
 A.'s executor can still sue X. for the tort. 
 
 (c) I Wms. Saund. 217, note I. 
 
 (d) Russell's Case, 5 Coke, 27 a. 
 
 {/) Williams v. Cary, 4 Mod. 403 ; Berwick v. Andrews, 6 Mod. 126. 
 
 (/) I Williams, Executors, 6th ed., 744, 745. It appears to be a moot 
 point whether the term " real estate," as used in the statute, includes chattels 
 real. Compare i Williams, Executors, 6th ed., 748, note (z), with 3 & 4 Will 
 IV. c. 42, s. 2.
 
 EXECUTORS AND ADMINISTRATORS. 
 
 423 
 
 Rule 93. — The personal representatives of the 
 deceased can not sue for injuries to the person, feel- 
 ings, or reputation of the deceased. (^) ' 
 
 The rule that an action for a personal wrong {h) dies 
 
 {g) Compare Rule 91. 
 
 (h) I'rovided, of course, that the assault does not cause A.'s death, and thus 
 fall within the exception afterwards mentioned. It may be well to notice that 
 there is no legal remedy for a libel on a deceased person. 
 
 I. So at common law for the 
 death of a person. Moran v. Hol- 
 ligns, 125 Mass. 93; Leonard v. 
 Columbia, &c., Co., 84 N. Y. 51 ; 
 Kramer v. Street Ry. Co., 25 Cal. 
 435 ; and an action for injury re- 
 sulting from negligence does not 
 survive; Arundel v. Springer, 71 
 Pa. St. 400. But when an action is 
 given for death by wrongful act of 
 another, the executor or adminis- 
 trator must prosecute the action. 
 Kramer v. Street Ry. Co., 25 Cal. 
 435; Weidner v. Rankin, 26 Ohio 
 St. 524; Meara v. Holbrook, 20 
 Ohio St. 137 ; and he may sue even 
 when the injury occurred in another 
 state, if the statute there is the same 
 as in that where the action is 
 brought. Leonard v. Columbia, 
 &c., Co., 84 N. Y. 54; Richardson 
 V. New York, &c. Ry. Co., 98 Mass. 
 90 ; Needham v. Grand Trunk Ry. 
 Co., 38 Vt. 299; Marcy v. Marcy, 
 32 Conn. 314; State v. Railway 
 Co., 45 Md. 44; Woodward v. 
 Railway Co., 10 Ohio. St. 122 ; 
 ■Perry v. Carmichael, 95 111. 529. 
 
 By the code an action survives 
 against the administrator for inju- 
 ries inflicted by the deceased. Car- 
 son v. McFadden, 10 Iowa, 9. 
 
 And an action for the negligence 
 or deceit of the deceased will lie 
 against his personal representative. 
 
 Tichenor v. Hayes, 41 N. J. L. 193. 
 So for timber carried away by the 
 testate in his lifetime. Cooper v. 
 Crane, 9 N. J. L. 173; Dickenson 
 V. StoU, 24 N. J. L. 551 ; Browne v. 
 Blick, 3 ^'lurph. 517; Shields v. 
 Lawrence, 72 N. C. 43; Smith v. 
 Nicholson, 6 La. Ann. 705 ; but not 
 for conversion in absence of statute. 
 Cherry v. Hardin, 4 Heisk. 200; 
 Terhune v. Bray, 16 N. J. L. 54; 
 Schott V. Sage, 4 Phila. 87 ; but by 
 statute, action for erecting a nui- 
 sance survives. Aldrich v, How- 
 ard. 8 R. I. 125, Brayton, J., say- 
 ing : " The statute provides not 
 only for cases of trespass where the 
 injury is not the direct but the im- 
 mediate effect of a wrongful act 
 forcibly done, but for actions of the 
 case, where the dangers are not 
 immediate, but to be recoverable 
 must be the natural and proximate 
 consequence of the wrongful act 
 alleged. If by direct injury to the 
 property is intended an injury to it, 
 thus resulting as the natural conse- 
 quence of the act charged against 
 the deceased, the injury here com- 
 plained of [building a stable near a 
 hotel] would seem to be of that 
 character and to be the natural and 
 proximate consequence of the nui- 
 sance charged."
 
 424 PARTIES TO ACTIONS. 
 
 with the person, still apjilics to those wrongs which are 
 of a strictly personal character. (/) 
 
 ExccpHon. — Actions where deceased killed by negligence. 
 
 Under 9 t^ 10 Vict. c. 93, an action is maintainable 
 against any person who causes the death of another by 
 his wrongful act, neglect, or default, provided that the 
 wrongful act would, if the person injured had not died, 
 have entitled him to maintain an action for the injury. 
 This action depends wholly upon statute, and being insti- 
 tuted for the purpose of enabling persons who have 
 suffered pecuniary damage by the death of a relation, 
 e. g-., a parent, to obtain compensation for the wrong* 
 doer — for example, the railway company by whose default 
 or negligence his death was caused — is in several respects 
 peculiar. 
 
 I St. The cause of action is not, strictly speaking, the 
 death of the person killed, e. g., the railway passt3nger, but 
 the injur}^ to him. The result is that if A. is injured in 
 a railway accident, and afterwards accepts from the com- 
 pany a sum of money in satisfaction of the injury done to 
 him, and then dies in consequence of the bodily 
 [405] injury which he has received, no action can be 
 brought against the company by his representatives. 
 {k) " The intention of the statute is not to make the 
 wrong-doer pay damages twice for the same wrongful 
 act, but to enable the representatives of the person injured 
 to recover in a case where the maxim, actio personalis 
 moritur cum persona would have applied. It only points 
 to a case where the party injured has not recovered com- 
 pensation against the wrcnig-doer." (/) Yet the damages 
 to be recovered are estimated with reference, not to the 
 damages which the deceased could have recovered if he 
 
 (j) See Broom, Maxims, 4th ed., 876. 
 
 (k) Read v. Great Eastern Rail. Co., L. R. 3, Q. 15 55= ; 37 L. J. 278 
 Q.B. 
 
 (/) Ibid., 557, i^er Lush, J. ; but compare Pym v. Great Northern Rail. Co.. 
 4 B. & S. 396 ; 32 L. J. 377, Q. B. (Ex. Ch.).
 
 EXECUTORS AND ADMINISTRATORS. 425 
 
 had lived, but to the loss inflicted upon the persons, e. g.^ 
 his children, for whose benefit the action is brought. 
 
 2ndly. The action must be brought by or in the 
 name of the executor or the administrator of the de- 
 ceased, {i}i) for the benefit of certain persons, viz., a wife, 
 husband, parent, or child ; («) or if it is not brought by 
 such executor or administrator within six months, then 
 in the name of the persons beneficially interested in the 
 result, ip) 
 
 3rdly. It must be brought within twelve calendar 
 months after the death of the deceased. 
 
 4thly. Not more than one action can be brought with 
 respect to the same subject-matter of complaint. (/) 
 
 5thly. The plaintiff on the record must deliver a full 
 particular of the person or persons for whom or on whose 
 behalf the action is brought, and of the nature of the 
 clanu. {q) 
 
 6thly. The amount recovered is divided among 
 the parties on whose behalf the action is brought, [406] 
 in such shares as the jur}^ may direct, if) 
 
 7thly. The action is maintainable although the death 
 of the deceased has been caused under such circumstances 
 as amount in law to felony, {s) 
 
 Rule 94. — The personal representatives of the 
 deceased can sue for injuries to his personal property 
 committed after his death. 
 
 (w) g & 10 Vict. c. g3, s. 2. 
 
 («) /. e., legitimate child (Dickinson v. North-Eastein Rail. Co., 2 H. & C. 
 535 ; 33 L. J. qi, Ex.) See 9 & 10 Vict. c. 93, s. 5, for the interpretation {^iven 
 10 the wordr, " parent," &c. 
 
 (p) 27 & 28 Vict. c. 95, s. I. 
 
 (/) 9 & 10 Vict. c. 93, s. 3. 
 
 (y) Iliid., s. 4. 
 
 (r) 9 & 10 Vict. c. 93, s. 2. 
 
 U) Il)id.. s. I.
 
 420 PARTIES TO ACTIONS. 
 
 U[>on the death oi the testator or intestate, it any 
 injury is afterwards done to his goods and chattels, the 
 executor or administrator may bring an action for 
 damages for the tort, and under such circumstances he 
 has his choice, either to sue in his representative charac- 
 ter, and declare as executor or administrator, or to bring 
 the action in his own name and in his individual charac- 
 ter, {t) The ground of this choice is, that on the death 
 of the testator or intest^ite, his executors or administrators 
 are in point of law the owners of the goods which belonged 
 to him, and consequently, whether in actual possession of 
 them or not, may declare, as any other person may, for 
 interferences with their rights over their own property. 
 Hence, an executor or administrator mav maintain tres- 
 pass or trover for taking away the goods of the deceased 
 after his death, whether the executor, &c., have ever been 
 in actual possession of the goods or not, for the property 
 draws to it, as it is said, the possession, {u) It is scarcely 
 necessary to add that an executor does not inherit greater 
 rights than those possessed by the testator. If, for exam- 
 ple, the testator's goods are in the hands of X., \vho 
 [407] has a lien upon them, the executor can not bring 
 trover against X. as long as the lien lasts. Though 
 all the personal estate of the testator or intestace passes to 
 his representatives, the right to bring actions for injuries to 
 it after his death is to some extent affected by the nature 
 of the property. 
 
 All the movable goods, though in ever so maciy dif- 
 ferent and distant places, vest in the executor in posses- 
 sion immediately on the testator's death, [v) Hence, for 
 an injury to them, e. g., a conversion, an executor can sue? 
 as already pointed out, the moment it is committed. So, 
 again, the reversion of a term which the testator has 
 granted for a part of the term (as e. g., where A., the 
 testator, is lessee of land for ninety-nine years and has 
 leased it for twenty-one years to B.), is in the executor 
 
 (/) I Williams, Executors, 6th ed., 820, S22. 
 
 (u) See a9tte. 
 
 {v) 2 Wms. Saund. 47 b, note i ; l Williams, Executors, 6th ed., 600
 
 EXECUTORS AND ADMLVISTRATORS. 427 
 
 immediately b}'' the death of the testator, {w) and, there- 
 fore, the executor can immediately bring an action for 
 any act injurious to his reversionar}'^ interest. 
 
 But things immovable, such as leases for years of 
 "land or houses, are not considered to be in the possession 
 of the executor or administrator before entry. And since, 
 as before pointed out, the right to bring an action for 
 trespass to land depends, not upon the right to possession, 
 but upon possession, {x) an executor or administrator 
 can not sue a person who, after the testator's death, tres- 
 passes on his property, until he has entered. 
 
 The executor or administrator may after entry bring 
 an action for trespasses committed before entry. ( j) 
 
 Relation of title. — An executor's title, depends, as 
 already pointed out, {£) upon the will; an administrator's 
 upon the letters of administration. Hence, an executor 
 can commence an action before he takes out probate, for 
 an injury to the personal property of the deceased, 
 whilst an administrator can not do so until the [408] 
 administration has been granted to him. It might, 
 therefore, be supposed to follow, that if, after the death 
 of A., the testator, and before letters of administration 
 are taken out, X. converts his goods, the administrator 
 could not sue X. in trover. But this consequence is 
 avoided by the doctrine that for some purposes an 
 administrator's title relates back to the death of the 
 intestate. Hence, an administrator may have an action ol 
 trespass, {a) or trover, for the goods of the intestate taken 
 by a wrong-doer before letters of administration were 
 granted. So it would seem that the grant of administra- 
 tifm will have the effect of vesting leasehold property in 
 the administrator bv relation, so as to enable him to bring 
 actions in respect of that property, for all matters affect- 
 'ing the same, subsequent to the death of the intestate. 
 
 (7/') Ibid., 600, f)or ; Tratdc v. King, T. Jdnes, 170. 
 (jt) See atite. 
 
 \y) See B.nneit v. GuiMforfl, ri Exch. if) ; 24 I.. J. 281, Ex. ; Radcliffe T. 
 Anderson, E. H. & E. 806 ; 29 L. J. 128, Q. n. 
 («) .See aftU. 
 (a) Thaiph v. Stallwood, 5 M. & G. lbo\ 12 I,. J. 241 C. P
 
 428 PARTIES TO ACTIONS. 
 
 In other words, the letters of administration, when g. anted, 
 give an administrator, speaking generally, the same rights 
 of suing wrong-doers as are possessed by an executor, {b) 
 
 Rule 95. — The real representative of the de- 
 ceased can not sue for any wrong done to him. 
 
 The right to sue passes, if it passes at all, to a deceased 
 person's personal, and not to his real representatives ; 
 nor can the latter sue for injury done to his property after 
 death. When an heir sues for an injury to the real estate, 
 which he inherits, he does not sue for any injury to the 
 testator's property, but for an interference with his own 
 rights as owner. 
 
 One apparent exception to this general principle is the 
 following : 
 [409] The heir-at-law is the proper person to main- 
 tain an action for the entire damage resulting from 
 a nuisance of a continuing nature, which comes into his 
 possession by descent, {c) 
 
 {b) An administrator, nevertheless, can not bring detinue against a person 
 who, having got goods of the intestate's, has ceased to hold them prior to the 
 grant of administration. Crossfield v. Such, 8 Exch. 825 ; 22 L. J. 325, Ex. 
 
 (c) Penruddock's Case, 5 Coke, loi a. ; Some v. Baiwish, Cro. Jac. 231. See 
 Addison, Torts, 3rd ed., 920. As to joinder of plaintiffs, see atiU. As to the 
 right of action for a tort passing to the survivor of several persons jointly in 
 jured, see ante.
 
 GENERAL RULES. 429 
 
 CHAPTER XXV. 
 
 DEFENDANTS GENERAL RULES. 
 
 Rule 96. — No person is liable to be sued for any 
 injur}^ of which he is not the cause. 
 
 No one, it is clear, can be held responsible for any- 
 thing which is not the result of his own acts or omissions. 
 But the conduct of X. may occasion injury to A., and 
 therefore, in one sense, be the cause of a wrong to A., 
 and yet X. may not be held responsible for the wrong, 
 either because it is only a remote consequence of X.'s 
 conduct ; or, under some circumstances, because the 
 damage complained of is due in part to what is termed 
 the contributory negligence of A. In either case the 
 ground on which X. is exempt from liability is that he is 
 not, in the eye of the law, the cause of the grievance com- 
 plained of by A. 
 
 Remoteness. — A person is not the cause of or liable for 
 the remote or indirect results of his acts. " It were infi- 
 nite for the law to consider the causes of causes, and their 
 impulsions one of another ; therefore, it contenteth itselt 
 with, the immediate cause, and judgeth of acts by that, 
 without looking at any further degree." {a) A person, 
 that is to say, is responsible only for the natural and 
 proximate consequences of his acts, and not for remote 
 consequences not clearly connected with the act com- 
 plained of. {b) 
 
 (a) Bacon, Maxims. Reg. i. See Broom, Maxims, 4th ed., 215. 
 
 {b) .See Vicars v. Wilcocks, 8 East, t ; 2 Smith, L. C. 6th ed., 487 ; Ward v. 
 Weeks, 7 Bing. 211 ; Ashley v. Harrison, i Esp. 48 ; Taylor v. Neri, Id. 386 ; 
 and contra for cases where damage was not too remote ; Lumley v. Gye, 2 E. & 
 B. 216; 23 L. J. 112, Q. B. ; R. v. Moone, 3 B. & A. 184; R. v, Carlile, 6 C 
 & P. 636
 
 430 P.lRyV/iS TO ACTIONS. 
 
 [411] The question of what is called remoteness, i. e.^ 
 
 whether the wrong complained of can be connected 
 with the conduct of the defendant closely enough to make 
 him liable for it, must, it is manifest, mainly arise when 
 the injury complained of is not some act such as a tres- 
 pass, which is actionable in itself, {c) but some act, e. g., 
 the utterance of a slander, which becomes an injury on 
 account of the damage which it causes ; since, in such a 
 case, it is necessary to show that the damage fairly results 
 from the conduct of the defendant. In an action, for 
 example, for slander, the damage must be the legal and 
 natural result of the words spoken, and A. can not sup- 
 port an action for slander against X. on account of a mere 
 wrongful act, such as a breach of contract by M., wdiich 
 was prompted b}', or resulted from, the statement uttered 
 by X. {d) Thus again, where the director of a musical 
 performance sued the defendant for libeling a public 
 singer, whereb}' she was prevented from performing in 
 public, and the plaintiff lost his profits, the damage was 
 held to be too remote to enable him to sue. {e) 
 
 The principle that a person is not liable for results 
 which do not flow natuially from his acts must be 
 applied with great caution. The expression, indeed, 
 " remoteness " is calculated to mislead, since a man may be 
 held the cause of, and liable for, damage which may be 
 a very remote consequence of his conduct, provided there 
 be no intermediate cause to which it can be more properly 
 referred. The true bearing and effect of the principle 
 under consideration is most easily explained in reference 
 to the rule, that any pei'son is liable to be sued who 
 
 causes injury to another. {/) 
 [412] Contributory negligence, (g) — A person is not 
 
 (r) See anU. 
 
 (d) Vicars v. Wilcocks, 2 Smith, L. C, 6th ed., 487 ; I.ynch v. Knight, 9 H. 
 L. C. 577. 
 
 {e) A>hley v. Harrison, i Esp. 48 ; Taylor v. Neri, I Esp. 386. But see 
 Lualey v. Gye, 2 E. & B. 216 ; 23 L. J. 462, Q. B. 
 
 (/) Rule 97. 
 
 {,?•) The doctrine of contriljiUory negligence may, perhaps, be in strictness 
 considered a result of the principle, that a person is not liable for the remote 
 consequences of his acts.
 
 GENERAL RULES. 431 
 
 liable for damage caused partly through his negli- 
 gence and partly through the negligence of the party 
 injured. 
 
 X., through his negligent driving, runs against A., and 
 breaks A.'s leg ; A., however, is himself driving negli- 
 gently, and through his negligence contributes to the 
 calamity. A. can not recover damages from X., nor, 
 under the "supposed circumstances, had X. been injured, 
 could he have recovered damages from A. " The rule 
 of law is, that although there may have been negligence 
 on the part of the plaintiff, yet, unless he might, by the 
 exercise of ordinary care, have avoided the consequences 
 of the defendant's negligence, he is entitled to recover. 
 If, by ordinary care, he might have avoided them, he is 
 the author of his own wrong." {h) " The question is 
 whether the damage was occasioned entirely by the neg 
 ligence or improper conduct of the defendant, or whether 
 the plaintiff so far contributed to the misfortune by his 
 own negligence and want of care or caution, that but for 
 such negligence or want of ordinary care on his part the 
 misfortune would not have happened. In the first case, 
 the plaintiff would be entitled to recover, in the latter he 
 would not, as but for his own fault the misfortune would 
 not have happened. Mere negligence, or ordinary want 
 of care or caution, would not disentitle him to recover, 
 unless it were such that but for that negligence and want 
 of ordinary care and caution the misfortune could not 
 have happened ; nor if the defendant might by the exer- 
 cise of care on his part have avoided the consequences of 
 the neglect or carelessness of the plaintiff." (/) The con- 
 tributory negligence of the plaintiff must, in order to tree 
 the defendant from liability, distinctly form part of 
 the cause of the damage; i.e., he one of the cir- [41 3 J 
 cumstances without which it could not have been 
 inflicted. (Xr) 
 
 (/;) Davics v. Mann, lo M. & W. 549, jicr Parkk, H. 
 it) Tuff V. Warman. 27 L. J. 322, C. P. (Kx. Ch.). jii'Ii^nicnt of Ex. Ch. 
 (k) Greenland v. Chaplin, 19 L. J. 293, 294, Ex., judgment of Pollock 
 C. B.
 
 432 PARTIES TO AC'JIONS. 
 
 The contributory neglij^cnce or wrong of a third party 
 IS no defense ; (/) for no one can rid himself of liability 
 for a tort merely by showino- that some one else is also 
 liable, {in) i. c, if the negligence of X. damages A., he 
 can not set uji in answer to A.'s claim for compensation, 
 that the negligence of Y. contributed to the accident. 
 Thus, where the joint negligence of two persons sepa- 
 rately emplo3'ed by the plaintiff caused an explosion 
 which damaged his shop, it was held that he could re- 
 cover against one of the parties, and that the negligence 
 of the other could not be a defense to the action, (n) " If 
 a man sustain an injury from the separate negligence of 
 two persons, employed upon his premises to do separate 
 things, . . . as in this case, the plaintiff has sustained 
 an injury from the negligence of the gas-fitters' servant on 
 the one hand, and of the gas company on the other, he 
 can, in my opinion, maintain an action against both or 
 either of the wrong-doers." (o) 
 
 Rule 97. — Any person who causes an injury to 
 another is liable to be sued by the person injured. 
 
 Every person who is the cause of an injury to another's 
 person, reputation, or property is liable to an action, (/) 
 and no one is liable to be sued for any wrong of which he 
 is not the' cause, (q) In determining, therefore, 
 [414] whether a given person is liable to be sued for 
 a wrong, of whatever description, the point to be 
 considered is, whether he be or not. in the eye of the law, 
 the cause of the injury complained of, to the person, 
 reputation, or property of the plaintiff. 
 
 Injuries to person. — If X. assaults or imprisons A., or 
 
 (/) Bullen, Pleadings, 3rd ed., 753 ; Harrison v. Great Northern Rail. Co., 
 3 H. & C. 231, 33 [.. J. 266, Ex. 
 (w) See Rule 98. 
 
 (m) Burrows v. March Gas Co., L. R. 5, Ex. 67. 
 {0) Ibid., 71, judgment of Kelly, C. B. 
 (/) Bacon, Abr., Action, B. 
 (g) Selwyn, N. P., 13th ed., 42. See Rule 96.
 
 GENERAL RULES. 433 
 
 otherwise directly interferes with the liberty of A., there 
 can be (supposing the circumstances of the case are 
 known) little or no difficulty in fixing upon X. as the 
 cause of, and therefore liable for, the wrong. X., more- 
 over, may be directly liable for an act of which, in one 
 sense, he is only the remote cause. X. threw a squib at 
 M., who, to get rid of it, tossed it to N., and after the 
 squib had been tossed from one person to another, it at 
 last fell upon and injured A. It was held, (r) that A. 
 could sue X. in trespass, though that action can be 
 brought only for direct injury, for the "intermediate acts 
 of [the other persons did] not purge the immediate tort 
 in the defendant. He who does the first wrong is answer- 
 able for all the consequential damages." {s) " I look," 
 says Grey, C. J., " upon all that was done subsequently 
 to the original throwing as a continuation of the first 
 force and first act, which will continue till the squib was 
 spent by bursting, and I think that any innocent person 
 removing the danger from himself to another is justifiable ; 
 the blame lights upon the first thrower." {f) So where 
 the defendant had a quarrel with a boy in the street, and 
 pursued him with a pickaxe, and the boy ran for safety 
 into a wine-shop, and upset a cask of wine, it was held 
 (by an American court), that the pursuer of the boy was 
 responsible in damages for the loss of the wine, {ti) 
 Where, however, the inj^jry to A.'s person arises from the 
 negligence of X., the question may, as already pointed 
 out, arise, whether A.'s own negligence has not 
 contributed to the result, since, if it has done so, X. [415] 
 is not the cause of the damage to A., and is not liable 
 to be sued for it. (x) 
 
 Lnjiiries to character. — i. Libel. — Every person who 
 publishes, i. e., makes public, a libel, may be sued. The 
 
 (r) Scott V. Shcpherfl, i Smith, L. C, 6th ed., 417. 
 
 {s) Ibid., 418,419, judgment of Nares, J. 
 
 (/) Ibid., 423. 424, judgment of DeGrey, C. J- 
 
 («) Vandcnburgh v. Truax, 4 Denio, (U. .S.) R., 464. 
 
 (x) It is hardly necessary to remark that the defense of contributory negli- 
 gence may arise when the injury is one, not to the person, but to the property 
 of the plaintiff. As to false imprisonment, see fiost. 
 28
 
 434 PARTIES TO ACTIONS. 
 
 person, therefore, who makes a defamatory statement, and 
 authorizes its publicatit)n in writing, (j) the person who 
 writes, the publisher who brings out for sale, the printer 
 who prints, the vendor who distributes, a libel, are each 
 guilty of publication, and may each be sued, {z) the gist 
 of the offense being the making public, not the writing of 
 the libel ; the person who having read a libel sends it on 
 to a friend, is a libelor ; {a) and it would seem that a per- 
 son wdio reads aloud a libel, knowing it to be such, may 
 be sued, {b) 
 
 2. Slander, {c) — The original utterer, and the repeater 
 of a slander, are each of them slanderers, and liable to be 
 sued for the slander, {d) 
 
 If the slander consists of words actionable in them- 
 selves, as where X. asserts of A. that he has committed 
 a murder, X., who originally makes the assertion, and Y. 
 who repeats it, stand exactly in the same position as 
 regards liabilit}'^ to be sued. They have each, in other 
 words, uttered a separate slander, for which they are each 
 liable to an action ; and Y. is liable even should he have 
 repeated the slander merely as arumor. {e) If the slander 
 consist of words not actionable in themselves, but action- 
 able only because they cause damage (as where X. 
 [416] says of A. that he is a blackguard, unfit for the 
 society of gentlemen, and so forth), then, indeed, 
 each person who utters the slander and causes damage by 
 the utterance of it is liable to an action. But as it is 
 essential, in order to fix the defendant with liability, to 
 show that the slander uttered by him has caused damage 
 to the plaintiff, there may be a considerable difference 
 between the liability of the utterer and of the repeater of 
 the slander, since it may not be possible to connect the 
 damage with the original utterance of the defamatory 
 statement. 
 
 (y) Tarkes v. Prescott, L. R. 4, Ex. 169 (Ex. Ch.). 
 
 (2) Bacon, Abr., Libel. B. i, 2. 
 
 (a) Coxhead v. Richards, 2 C. B. 569 ; 15 L. J. 278, C. P. 
 
 {b) Bacon, Abr., Libel, B. I, 2. 
 
 {c) See atite. 
 
 (d ) Watkin v. Hall, L. R. 3, Q. B. 396. 
 
 (e) IbiJ.
 
 GENERAL RULES. 435 
 
 A person who utters or repeats a slander is not in 
 general to be considered the cause of, and therefore liable 
 for damage, which is merely the result of its further 
 repetition by others. " Every man must be answerable 
 for the necessary consequences of his own wrongful acts ; 
 but ... a spontaneous and unauthorized communica- 
 tion can not be considered as the necessary consequence 
 of the original uttering of the words. (/) Where one 
 man makes a statement to another, who repeats it to a 
 third, I do not think it reasonable to hold the first 
 speaker responsible for the ultimate consequences of his 
 speech. If I make a statement to a man, I know the 
 consequences of making it to him when I make it; but 
 if I do not desire, and do not authorize, the man to whom 
 I make it to repeat it, but he does it, am I to be liable 
 for the consequences of his so doing." {g) X. said to 
 M. that A. was a swindler. Damage ensued to A. in 
 consequence of the repetition of these words by M. It 
 was held, that A. could not sue X. (h) An action was 
 brought by A. and B., a husband and wife, against X., and 
 Y., his wife. The words declared upon were addressed 
 by Y. to B. in the presence of other persons, but 
 in the absence of A. They were repeated without 
 the authority of Y. b}^ B. to A., her husband. A., [417] 
 in consequence of the imputation contained in the 
 slander, refused to cohabit with B. It was held, that the 
 defendants were not liable for the unauthorized repetition 
 of the slander by B. to A., her husband. (/) The speaker 
 (;f a defamatory statement is not answerable for damage 
 caused by the wrongful or illegal act of a third party, 
 though this act may be committed in consequence of the 
 slander. If, that is to say, X. makes a slanderous state- 
 ment about A., and M., in consequence, assaults A., or 
 breaks a contract he has entered into with A., the assault 
 or breach of contract will not be held to be caused by the 
 
 (/) Ward V. Weeks, 7 Bing. 215, per Curiam ; Parkins v. Scott, 31 L. J. 
 334, Ex., jiKljjment of Pollock, C. B. 
 
 ( g) Parkins v. Scott, 3 1 L. J. 334, Ex., jmlgmcnt of Bramwell, B. 
 
 ( h ) Warfi V. Weeks, 7 Bing. 21 1. 
 
 (i) Parkins v. Scott, I H. & C. 153 ; 31 L. J. 331, Ex
 
 436 PARTIES TO ACTIONS. 
 
 slander uttered by X. {k) A person who utters a slander 
 is, however, in many cases responsible for the results of 
 It? repetition by another. He is so, for example, " if the 
 utterer should have authorized its repetition." (/) 
 
 The result is, that though the utterer and the repeater 
 of a slanderous statement are each independently liable to 
 be sued, yet when, fi)r the maintenance of an action, it 
 is requisite to prove that damage was caused to the plain- 
 tiff by the words complained of, it is in general easier to 
 fix the repeater than the utterer of the slander with lia- 
 bilitv for the damage. (;;/) 
 
 Injuries to property. — i. Real property, or lanel. — When 
 the act complained of is a trespass, {n) there can in 
 general be little difficulty in determining who is the 
 
 wrong-doer, {o^ 
 [418] When the wrong complained of is an act which 
 
 is injurious, because of the damage caused thereby, 
 there may no doubt arise a question, as in other cases, 
 whether the damage was caused by the act or omission 
 of the defendant. He may, however, be responsible for 
 damage for which he would not generally be perhaps 
 considered the immediate cause. X. and Y., the defend- 
 ants, who were drainage commissioners, were empowered 
 to construct a cut with proper walls, &c., to keep out the 
 waters of a tidal river, and also a culvert under the cut 
 to carry off the drainage from the lands on the east, to the 
 west of the cut, and were to keep the same at all times 
 open. In consequence of the negligent construction of 
 the gates, &c., the river flowed into the cut, and bursting 
 its western bank, flooded the adjoining lands. The 
 plaintiff, and other owners of land on the east side of the 
 cut, closed the lower end of the culvert, and prevented 
 
 {k) Taylor v. Neri, r Esp. 386 ; Vicars v. Wilcocks, 2 Smith, L. C, 6ih ed 
 487, 489 ; but compare Lynch v. Knight, 9 H. L. C. 577. 
 
 {/) Parkins v. Scott, 31 L. J. 334, Ex., per Pollock, C. B. 
 
 {m) It is moreover possible that one of the parties may have uttered the 
 slander under circumstances which made it a privileged communication, whilst 
 the other may not be able to show that he is protected by any privilege. See 
 Watkin V. HaU, L. R. 3, Q. B. 396 • 37 L. J. 125, Q. B. 
 
 {n) See ante. 
 
 {0) As to the liability of all persons who join in a trespass, see Rule 91.
 
 GEXERAL RULES. 437 
 
 the waters from overflowing their lands to any consider- 
 able extent ; but the occupiers of the land on the west 
 side re-opened it, and so let the waters through on to the 
 plaintiS"'s land to a much greater extent. It was held 
 that the commissioners were responsible for the entire 
 damage thus caused to the plaintiff's land, (r) 
 
 2. Personal property, or goods, (s) — Any person who 
 interferes with another's right to the possession of goods 
 is liable to an action. If his interference does not amount 
 to a deprivation of the rightful possessor's possession of 
 the goods ; if it is a mere taking of the goods from one 
 place to another, the wrong-doer is guiltv merely of a 
 trespass. (/) If, for example, a man who has no right to 
 meddle with goods, removes them from one place to 
 another, an action may be maintained against him for 
 the trespass : but he is not guilty of a conversion of them 
 unless he removes the goods for the purpose of 
 taking them away from the plaintiff, or of exercis- [419] 
 ing some dominion or control over them for the 
 benefit of himself or sonie other person, (u) But if the 
 wrong-doer keeps the goods of another person out of his 
 hands, or sells, destroys, or pawns them, or, in short, claims 
 to treat them in any way inconsistent with that other 
 person's right to immediate possession, he is guiltv of a 
 conversion, and liable to an action of trover or detinue, (x) 
 
 Trover, (y) — As a conversion is an act actiortable in 
 itself, there is no need to consider, in determining who 
 ought to be sued for it whether or not it has produced 
 actual damage. But two points require notice. 
 
 (r) Cllir.- V. Mi : iltr I>cvel Commissioners. L. R. 4. C. P. 279. See further 
 ^~ 'o a !c;.r, Jair.', i; ..i.ty for a nuisance, />osl. 
 ••■ v. 
 rrooghes v. Bajne, 29 L. J. 1S7. Ex., judgment of Martin, B. 
 
 -rd ed.. 309 ; Falke ▼. Flcicher. 34 L. J. 146. C P. ; 
 M.Ac W. 551. 
 
 2 Wms. Saund. 47 k. The gist of trover is the 
 
 je is the wrongful detainer of goods ; trover is 
 
 ■ . .VL ..'.- ...... _. .-. ., i .V . -is^ irheie=« •■— ■' -' 
 
 of 'U-;inue is to r<. .es. The 
 
 between the Two <a- ... ...i,-... -.-, i..,i ...i,..^; - .. i.^. ..-.. 5 H. & N. ^/^ , .^ ^. 
 
 J. 'ss. Kx ) IS of little importance for the present purpose. 
 ijf) Sec anU.
 
 438 PAK'JVHS TO ACTIONS. 
 
 1st. It may be hard to settle whether a giv^en act 
 amounts to a conversion, /. c, to a denial of the plaintiff's 
 right to possess the goods. A. let a billiard-table to M., 
 who assigned the goods in his house, and amongst them 
 the billiard-table, by a bill of sale to X. X. took posses- 
 sion, but did not remove the table. A. demanded the 
 table. X. desired to see the writing by which it was let 
 to M. Some negotiation took place as to this, and ulti- 
 mately X.'s servant would not give up the table to A. 
 when A. called for it, though X. had directed him to do 
 so. The table was afterwards seized by M.'s landlord for 
 rent, and A. brought an action of trover against X. (,3') 
 The majority of the court held, that there was evidence 
 of a conversion of the billiard-table by X., but Bramwell, 
 B., thought that there was not "an assertion of dominion 
 
 inconsistent with the title of the plaintiff; that the 
 [420] whole affair was matter of discussion up to the 
 
 time the plaintiff was informed the goods were at 
 his service, and that so far as the defendant was concerned 
 there clearly was no conversion." (a) X., a wharfinger, 
 held wine of A.'s. Under a mistaken view as to the legal 
 effect of an attachment, he refused to give up the wine to 
 A. on demand, and asked for time for inquiry. A. sued 
 X. in trover. The majority of the Court of Exchequer 
 thought that there was, and Bramwell, B., that there 
 was not, a conversion, (d) The criterion of the existence 
 of a conversion is whether the wrong-doer assumes to 
 himself the right of disposing of another's goods. But 
 what acts amount to such an assumption may often be a 
 matter of dispute, and acts which would be a conversion 
 if done by one person need not be so if done by another. 
 Thus if X. takes and sells the goods of A., or keeps them 
 from him, A. may treat him as a wrong-doer without any 
 request to return the goods ; but " it is a common learn- 
 ing that where the goods come into the defendant's pos- 
 session by delivery or finding, the plaintiff must demand 
 
 (2) Burroughes v. Bayne, 5 H. & N. 296 ; 29 L. J. 185, Ex. 
 
 (a) Burroughes v. Bayne, 5 H. & X. 31 1, judgment of Bramwfxl, B. 
 
 {6) PiJlot V. Wilkinson, 32 L. J. 201, Ex. ; 2 1 1 & C. 72.
 
 GENERAL RULES. 
 
 439 
 
 them, and the defendant refuse to deliver thera up, in 
 order to constitute a conversion, {c) 
 
 2ndly. As ever)' one who interferes with another man's 
 right to the possession of his goods is guilty of conver- 
 sion ; and as no man can, as a general rule, give to 
 another a better title to goods than he possesses himself, {d) 
 a series of persons may each be guilty of successive acts 
 of conversion o( the same goods, and each therefore be 
 liable to an action of trover by the owner. X., for exam- 
 ple, takes the goods of A., and Y. takes them from X. 
 A. can sue either X. or Y. So if X. takes and sells the 
 goods of A. to Y., and Y. sells them to Z., A. may sue X., 
 Y., or Z., {e) " for a man is guilty of a conversion 
 who takes my property from another who has no [421] 
 authority to dispose of it, for what is that but assist- 
 ing that other in carrying his wrongful act into effect." (/) 
 So, again, if goods are bailed to one man and he wrong- 
 fully sells them to another, {g) an action lies not only 
 against the bailee, but also against a bona fide purchaser ; 
 {h) and the owner can sue an auctioneer, [i) or a pawn- 
 broker, (/) who receives goods from a person who has no 
 title to them, and sells them or refuses to give them up to 
 the owner. 
 
 Indirect injuries. — Though most of the wrongs referred 
 to in this chapter have been acts, such as tres'pass, the 
 publication of a libel, conversion, &c., which are action- 
 able in themselves, a person may, it should be remarked, 
 be injured in different ways, e. g., as well in person as in 
 property, by acts, such as negligence or fraud, which are 
 
 (c) Wilbraham v. Snow, a Wms. Saund. 47 i. So an act wliich would be 
 conversion in a master need not be so in his servant. See Chapter XVI. 
 
 (d ) See, as to this rule and the exceptions to it, Benjamin, Sale, 4-16. 
 
 (e) Cooper v. Willomatt, i C. B. 672 ; 14 L. J. 2ig, C. P. 
 (/) McCombie v. Davies, 7 Ea'^t, 5. 
 
 {g) See, as to the question how far a sale in all cases determines a bailment 
 attlf, 
 
 (//) Cooper V. Willornatt, i C. IJ. 672 ; 14 L. J. 2if), C. V. ; Ilardman v 
 Booth, I ri. cSc C. 803 ; 32 I,. J. 105, E.^. 
 
 {/■) Grimshaw v. Atwel;, 8 C. Si P. 6. 
 
 ( j) Packer v. Gillies, 2 Camp, 336. Compare Donald v. Suckling, L. R. i 
 Q. B. 585.
 
 440 PARTIES TO ACTIONS. 
 
 actidiiable only because of the damage which they cause. 
 Ill considcrino;- whether a given person can be sued, the 
 points to be weighetl arc, first, whether the damage com- 
 plained of be not mere damage without injury ; {k) and, 
 secondly, wiiether the defendant be so connected with tiie 
 damage that he may be considered its cause. 
 
 A person is the cause, not only of his own direct acts 
 and of the wrongs immediately arising from them, but 
 also of wrongs which can be considered to be ultimately, 
 and in the natural course of things, the effect of his con- 
 duct. A man, therefore, is the cause of injuries arising 
 from the mode in which he uses land or goods 
 [422] Hence a person's liability for nuisances maintained 
 on land, or for damage inflicted on others by hi? 
 goods. 
 
 Nuisance on land. — Every person who creates or con- 
 tinues a nuisance, causes it, and is therefore liable to be 
 sued by any person specially injured thereby, (/) 
 
 The person who creates a nuisance is liable, even 
 though the land on which he created it does not belong 
 to him, and he could not remove the nuisance without a 
 trespass, {in) The defendants, X. and Y., erected a build- 
 ing on land which was not their own, but that of the cor- 
 poration of K , of which they were members. The 
 
 building was a nuisance to A.'s market, by excluding the 
 public from part of the space on which the market was 
 lawfully held. It was decided that A. might maintain an 
 action for the continuing nuisance against X. and Y. " It 
 was argued," said the court, "that the plaintiff might 
 maintain an action against the corporation who received 
 the rents of the building, or the tenants who occupy, as 
 appears by the case of Ripon v. Bowles, {n) but that case 
 shows that he is not bound to pursue that remedy, but 
 
 (k) Actions for fraud and actions for malicious prosecution afford good 
 examples of actions for indirect injuries, and of the sort of questions to which 
 such, actions gis'e rise. 
 
 (/) 2 Selwyn, N. P., I3ih ed., 1082-1084 ; Addison, Torts, 3rd ed., 159, 160 { 
 Perruddock's Case, 5 Coke, loi a. 
 
 (w) Thompson v. Gibson, 7 M. & W. 456. 
 
 («) Cro. Jac. 373.
 
 GENERAL RULES. 441 
 
 may sue the original wrong-doer. It was also said that 
 the defendants could not now remove the nuisance them- 
 selves without being guilty of a trespass to the corpora- 
 tion, and that it would be hard to make them liable. But 
 that is a consequence of their own original wrong : and 
 they can not be permitted to excuse themselves from pay- 
 ing damages for the injur}^ it causes, by showing their 
 inability to remove it without exposing themselves to 
 another action." {0) 
 
 A landlord is responsible for a nuisance of a permanent 
 character on the land in the occupation of a tenant from 
 year to year, if after the creation of the nuisance, and before 
 the damage caused, he might have put an end to the 
 tenancy, and did not, the ground of this liability [423] 
 being that permission to the same tenant to remain 
 in possession, is analogous to a re-letting ; and it is no 
 defense that the landlord had no knowledge of the exist- 
 ence of the nuisance. (/) Nor does the length of the ten- 
 ancy seem to make any difference in the landlord's liabil- 
 ity, provided he had an opportunity of putting an end to 
 it after the creation of the nuisance, and before the damage, 
 {g) for the cases show " that if the wrong causing the 
 damage arises from the non-feasance or the misfeasance 
 of the lessor, the party suffering the damage from the 
 wrong may sue him." if) The principle is, that a party 
 suffering damage from a nuisance has the option of suing 
 either the lessee or the lessor, {s) 
 
 A person, further, who sells his interest in land, after 
 erecting a nuisance on it, remains liable for the continu- 
 ance of the nuisance, and can not relieve himself from 
 liability by the sale; (/) so, also, the purchaser of land 
 
 (o) Thompson v. Gibson, 7 M. & W. 456, 462, per CURIAM. 
 
 I p) Gandy v. Juhber, 33 L. J. 151, Q. 15. ; 5 H. & S 78, 486. 
 
 {</) Todd V. Flight, 9 C. B., N. S.. 377 ; 30 L. J. 21, C. W ; 2 Sclw)'n, N. 
 P., 13th ed., 1083. 
 
 {r) Todd V. Flight, 30 L. J. 24, C. I'., per Curiam. 
 
 (s) ll)id. ; Payne v. Rogers, 2 II. Bl. 350 ; Rosewell v. Prior, 12 Mod. 396 ; 
 R. V. Pedley, i A. & E. 824. Sec. however, Saxhy v. Manchester Rail. Co., L. 
 R. 4. C. P. 198. 
 
 (/) Rosewell v. Prior, 12 Mod. 396. Compare Penruddock's Case, 5 Coke, 
 lOl a.
 
 442 PARTIES TO ACTIONS. 
 
 with a nuisance on it, is liable for the nuisance after a 
 request made to him to remove it. (//) " A landowner 
 who creates a nuisance upt)n his land, or purchases land 
 with an existing nuisance upon it, can not, by granting oi 
 conveying the land to another, get rid of the responsibility 
 on the ground that he has no longer any control over the 
 nuisance. Before his assignment over, he. was liable for 
 all consequential damages ; and it is not in his power to 
 discharge him3el*" by granting it over, more especially 
 where he grants it over, reserving rent, whereby 
 [424] he agrees with the grantee that the nuisance should 
 continue, and has the rent for the same." {x) 
 
 The tenant, again, or occupier, who creates a nuisance, 
 or suffers it to remain, is responsible for it to the persons 
 injured thereby, {z) 
 
 The ground of liability is in each case the same, viz., 
 that the landlord, tenant, or occupier is considered the 
 cause of the nu'sance ; and even the owner of land is not 
 responsible for a nuisance thereon, not occasioned by his 
 acts or omissions. X., for example, lets premises to Y., 
 which are not in themselves a nuisance, but which may 
 be used by the tenant so as to become so, and the land- 
 lord derives the same benefit from them in whatever way 
 they are used ; X. is not responsible for the acts of the 
 tenant, {a) In a case of this sort, where the plaintiff was 
 damaged by smoke from fires lighted by the tenant, it 
 was said by the Court : — " It appears to us that if a land- 
 lord lets premises, not in themselves a nuisance, but which 
 may or may not be used by the tenant so as to become a 
 nuisance, and it is entirely at the option of the tenant so 
 to use them or not, and the landlord receives the same 
 benefit whether they are so used or not, the landlord can 
 not be made responsible for the acts of the tenant." {b) 
 
 («) Penniddock's Case, 5 Coke, lOi a ; Addison, Torts, 3rd ed., 159. 
 
 {x) Rosewell v. Prior, 12 Mod. 396, per Curiam ; Thompson v. Gibson, 7 
 M. 6c W. 462. cited, Addison, Torts, 3rd ed,, 159, 160. 
 
 (2) Todd V. Flight, 9 C. B., N. S., 377 ; 30 L. J. 21, C. P., compared with 
 Saxby v. Manchester Rail. Co., L. R. 4, C. P. 198. 
 
 (a) Rich V. Basterfield, 4 C. B. 783 ; 16 L. J. 273, C. P. 
 
 {b) Ibid., 4 C. B. 800, 801, 804, 806, per Curiam.
 
 GENERAL RULES. 443 
 
 X. & Y. owned the soil of a stream which supplied 
 water to two print-works. M., w^hilst occupier of both 
 works, erected a weir across the stream, and thereby- 
 diverted the water from one of the works. A., becominsf 
 lessee of the last-mentioned work, and entitled to the 
 water of the stream, removed the w^eir. M., afterwards, 
 and without any authoritv from the defendants, and against 
 their will, replaced it. It was held, that X. & Y., 
 though owners of the soil, were not responsible for [425] 
 the continuance of the nuisance, {c) 
 
 Damage from goods. — A person is the cause of, and 
 therefore liable for, injuries to others arising from his 
 goods and chattels as long as they remain under his con- 
 trol, {d) but not when they pass out of his control, unless 
 he loses control of them by his fault, {e) Where, there- 
 fore, a ship is sunk, or an anchor is washed away by the 
 tide, the owners are not bound at common law independ- 
 ently of special statutor)' provisions to remove the 
 wreck or anchor, or responsible for the damage caused 
 by them. (/) 
 
 An owner is therefore liable for injuries done by his 
 animals ; for by keeping an animal, known to be danger- 
 ous, he causes the injury, and his liability depends, not 
 on negligence, but on the fact that he keeps or harbors 
 an animal known to be dangerous, {g) Knowledge is 
 essential ; {h) but while knowledge may be assumed in the 
 case of animals of a fierce nature, it must be proved in 
 animals of a mild nature, e. g., a horse. Thus, wdiere X. 
 let his horse stray into a road, and A., a child, was kicked 
 
 (c) Saxhy v. Manchester Rail. Co., L. R. 4, C. P. 198,203, 204. See, further, 
 as to the general li-.bility of the owner of land for damage caused to others by 
 the u.se of it, Fletcher v. Rylans, L. R. r, Ex. 265, 279; Jones v. Festiniog Rail. 
 Co., L. R. 3, Q. 13. 736, judgment of BLACKBURN, J. 
 
 (d) Brown v Mallett, 5 C. B. 599; 17 L. J. 227, C. B. ; R. v. Watts, 2 
 Esp. 675. 
 
 (e) Hancoi:k v. York, Newcastle, and Berwick Rail. Co., 10 C. B. 348. 
 Compare White v. Crisp, 11 Exch. 312 ; 23 L. J. 317, Ex. 
 
 (/) Brown v. Mallett, 5 C. B. 599; ^^ L.J. 227, C. P.; R. v. Watt.s, a 
 Esp. 675 : Bartlett v. Baker, 3 \l. & C. 152 ; 34 L. J. 8, Ex. 
 
 (.^) Rylarids v. Fletcher, L. R. 3. H. L. 830; Judge v. Cox, I Stark, 285 ; 
 May V. Burdelt. 9 Q. B. loi ; 16 L. J. 64. Q. B. 
 
 (h) Cox V. Burbidge, 13 C. B., N. S., 830 ; 32 L. J. 89. C. P.
 
 444 PARTIES TO ACTIONS. 
 
 and injured by it, it was held that A. could not sue X. 
 *' The owner of a horse is bound to know, and must be in 
 all cases taken to know, tiiat a horse is by nature likely to 
 stray il not carefully confined, and to walk into a pasture 
 
 and consume the grass. For this, therefore, the 
 [426] owner is held to be liable. But if a horse does an 
 
 act which is not in the ordinary course of the 
 nature of a horse to do, and which no owner would, 
 therefore, without knowing his peculiar vicious nature, 
 have any reason to calculate on his doing, then he has 
 the same protection as the owner of a dog. It is not in 
 the ordinary course of the nature of a horse to kick a 
 child, and, therefore, the owner is not liable, unless he is 
 proved to be aware that the horse had a tendency to acts 
 of that kind." (0 
 
 But though, where the gist of the action is the damage 
 caused by animals kept or harbored by the defendant, it 
 is necessar}^ to show the ferocious character of the animal, 
 and that it was known to the defendant, still an owner is, 
 as a general rule, responsible for trespasses committed by 
 his animals, e. g., horses or oxen, whatever their charac- 
 ter. In other words, a trespass is an act actionable in 
 itself, and the owner who keeps animals which trespass 
 is looked upon as committing the trespass himself. X.'s 
 horse, through the defect of a gate which X. was bound 
 to repair, got out of his farm and strayed into A.'s field, 
 and there kicked and injured A.'s horse ; it was held, that 
 X. was liable for the trespass by his horse, and that it was 
 not necessary to prove that the horse was vicious, and 
 that the plaintiff knew of it. (/) Yet an owner, though 
 liable for every trespass committed by his horses, oxen, 
 &c., is probably not liable for trespasses committed by 
 animals, such as dogs or cats, naturally given to wander. 
 " The question was much argued " in a particular case, 
 {m) " whether the owner of a dog is answerable in tres- 
 
 (f) Cox V. Burbidge, 32 L. J. 90, 91, C. P., judgment of Erle, C. J.; and 
 Bee Ibid., 92, judgment of Keating, J. 
 
 (/) Lee V. Riley, 34 L. J. 212, C. P. ; 18 C. B., N. S., 722 ; Cox v. Burbidge, 
 32 L. J. 89. C. P. ; Powell v. Salisbury, 2 Y. & J. 391. 
 
 {m) Reed v. Edwards. 17 C B., N. S., 245 ; 34 L. J. 31, C. P.
 
 GENERAL RULES. 
 
 445 
 
 pass for every unauthorized entry of the animal nito the 
 land of another as [he] is [in] the case of an ox, and 
 reasons were offered . . . for a distinction in this 
 respect between oxen and dogs or cats, on account [427] 
 of, first, the difficulty or impossibility of keeping the 
 latter under restraint ; and secondly, the slightness of the 
 damage which their wandering ordinarily causes ; thirdl}- 
 the common usage of mankind to allow them a wider 
 liberty ; and, lastly, their not being considered in law as 
 absolutely being the chattels of the owner so as to be the 
 subject of larceny." {g) The true reason for this exemp- 
 tion from liability is, it would seem, the last. The owner, 
 not being in a strict sense the possessor of such animals, 
 he is not looked upon as liable for, or as the cause of their 
 acts. 
 
 Exception — Where persons are protected from actions. 
 
 Certain persons are in different degrees protected b}' 
 their positions from an action for tort. 
 
 Judges. — A judge can not be sued {r) for a malicious 
 act, even though done maliciously and corruptly. 
 
 This exemption extends to the judge of a county court, 
 and where such a judge was sued for slanderous words 
 spoken by him during the trial of a cause, falsely and 
 maliciously, and without reasonable and probable cause, 
 and not bona fide in the discharge of his duty, it was held 
 that no action would lie ; {s) " for though the question 
 [arose] perhaps for the first time with reference to -a 
 county court judge, a series of decisions, uniformly to the 
 same effect, extending from the time of Lord COKE to the 
 present time, establish the general proposition that no 
 action will lie against a judge for any acts done or words 
 
 {q) Reed v. Edwards. 34 L. J. 34, C. P., per CURIAM. Compare 28 & 2g 
 Vict. c. 60, as to injuries done to cattle by dogs ; under which Act it is not 
 necessary to prove, — 1, a previous mischievous propensity in the dog; 2, the 
 knowledge thereof by the owner ; 3, the ncj,digence of the owner. 
 
 (r) Kemp v. Neville. 10 C. li.. N. S., 523 ; 31 L. J 158, C. P., esp. 10 C. B, 
 N. S.. 549-551. 
 
 (i) Scott V. Stansficld, L. R. 3, Ex. 220.
 
 446 PARTIES TO ACTIONS. 
 
 spoken in his jiulicial capacity in a court of justice. This 
 doctrine has been applied, not only to the superior courts, 
 
 but to the couitt)f a coroner, and to a court-martial, 
 [42SJ which is not a court of record. It is essential in 
 
 all courts that the judges who are appointed to 
 administer law should be permitted to administer it under 
 the protection of the law, independently and freely, with- 
 out favour and without fear." (/) There does not seem to 
 be in theory much, if any, distinction between the pro- 
 tection extended to a judge of the superior courts and 
 that given to a judge or judicial officer of an inferior court 
 such as a county court judge, {u) the chancellor of the 
 luiiversities, {x) coroners, {y) returning officers, {z) magis- 
 trates, (a) &c. For though no judge or person acting 
 judicially can be sued for any adjudication according to 
 the best of his judgment, in a matter within his jurisdic- 
 tion, ib) even though he act maliciously, {c) any judge may 
 be sued for an act not done in his judicial character. The 
 only question is, whether the judge of a superior court is 
 liable to an action for judicial proceedings beyond the 
 scope of his jurisdiction, {d) 
 
 The judge of an inferior court is certainly liable to be 
 sued for acts not within his jurisdiction, {e) provided that 
 he knew, or had the means of knowing, that they were not so. 
 (/) " The Privy Council say that trespass will not lie for a 
 judicial act without jurisdiction, unless, the judge had the 
 
 means of knowing the defect of jurisdiction, and it 
 [429] lies on the plaintiff in every case to prove that 
 
 (/) Scott V. Stansfield, L. R. 3, Ex. 222, 223, judgment of Kelly, C B. 
 Compare Daw kins v. Paulet, L. R. 5, Q. B. 94. 
 
 (m) Scott V. Stan>field, L. R. 3, Ex. 220. 
 
 (x) Kemp V. Neville, lo C. B., N. S., 523 ; 31 L. J. 158. C. P. 
 
 (;') Garnett v. Ferrand, 6 B & C. 615. 
 
 (0) Tozer V. Child, 7 E. & B. 377 ; 27 L. J. 151, Q. B. (Ex. Ch.). 
 
 {a ) Calder v. Halkett, 3 Moo. P. C. 28 ; Gelen v. Hall, 2 H. & N. 379 ; 27 
 L. J. 78, M. C. 
 
 (b) Kemp v. Neville, 10 C. B., N. S.. 523; 31 L. J. 158, C. P. 
 
 {c) Scott V. Stansfield, L. R. 3 Ex. 220. 
 
 (d) Taafe v. Downs, 3 Moo. P. C. 36, n., where a distinction is drawn 
 between the judges of superior and inferior courts. 
 
 {e) Houlden v. Smith, 14 Q. B. 841 ; Pease v. Chaytor, 32 L, J. I2r, M. C.J 
 3 B. & S. 620. 
 
 if) See note {/), next page.
 
 GENERAL RULES. 447 
 
 fact. (/) In Houlden v. Smith, the judge of the 
 county court was held liable in trespass, because he was 
 within the exception thus laid down, and had the means 
 nf knowing that he had no jurisdiction." {g) Though the 
 decision of a judicial officer upon a matter of fact within 
 his jurisdiction can not be put in issue in an action against 
 him, (//) yet he can not give himself jurisdiction by a 
 decision with regard to the facts on which the jurisdiction 
 depends, {i) 
 
 Magistrates, constables, 6-^.— Magistrates, constables, 
 cS:c., are to a great extent protected. 
 
 A magistrate, for example, can not be sued for an)'- 
 thing done within his jurisdiction, unless it be alleged 
 that the act was done without reasonable and probable 
 cause, {k) And though an action can be brought for acts 
 done without or in excess of jurisdiction without alleging 
 malice or want of reasonable or probable cause, yet in 
 this case, too, no action can be brought until the convic- 
 tion or order has been quashed, (/) and, further, where a 
 magistrate is sued in respect of anything done^n execu- 
 tion of his office, he has special privileges with respect to 
 the time within which the action must be brought, notice 
 of action, venue, <S:c. 
 
 Constables and police-officers are also to some extent 
 protected persons, since, for example, a constable, head- 
 borough, or other officer, or any person acting by his 
 order or in his aid, is protected when acting in obedience 
 to a warrant. He can not be sued without demand 
 of a copy and perusal of the warrant, nor can he be [430] 
 sued when once such demand has been complied 
 with. («) 
 
 (/) See Calder v. Ilalkett, 3 Moo. P. C. 2S ; and contrast Houlden v. 
 Smith, 14 Q. B. 841. It is not absolutely decided on which side lies the bur- 
 den of' proving that a judicial officer has acted without jurisdiction. Compare 
 Garrett v. Morley, I Q. B. 18. with Calder v. Ilalkett, 3 Moo. P. C. 28. 
 
 {g) Kemp V.Neville, 10 C. B., N. S., 551 per Curiam. 
 
 (//) Ibid., !0 C. B., N. S., 523 ; 31 L. J. 158. C. P. ; Mould v. Williams. 5 
 
 Q. P.. 4^'9- 
 
 [i) Mould V. Williams, 5 Q. B. 469. 
 
 \k) II & 12 Vict. c. 44, s. I. 
 
 (/) Ibid., s. 2. 
 
 (/;) 24 Geo. II. c. 44. s. 6; Atkins v. Kill)y, 11 A. & E. 777; Cl-nrk v.
 
 448 PARTIES TO ACTIONS. 
 
 Persons arc also often to some extent protected either 
 because thev bcloni^ to particular classes or have done 
 the acts complained of whilst acting under or in pursa- 
 ance of particular statutes. Such persons may, indeed, 
 be sued, but they arc entitled to privileges, of which the 
 most ordinary are a month's notice of action, freedom 
 from liability to be sued after the lapse of a short time 
 from the date of the act complained of, the right to defend 
 themselves by tendering compensation, and so forth. 
 Thus, for example, the Metropolitan Board of Works are 
 entitled to one month's notice of action against them ; so 
 are persons acting in pursuance of, e. g., the Coining Act, 
 {o) the Hackney Coach Act, (/) the Juvenile Offenders' 
 Act, {q) the Larceny Act, {r) the Contagious Diseases 
 (Animals) Act, {s) and many other statutes which it is not 
 within the scope of the present work to enumerate ; and 
 when the wrong done by the defendant is an act done or 
 intended to be done under or by virtue of the powers of 
 any statute, the wrong-doer is often at least so far pro- 
 tected as to be entitled to notice of action and other like 
 privileges. 
 
 Rule 98. — One, or any, or all of several joint 
 wrong-doers may be sued. 
 
 Every person who joins in committing a tort is sepa- 
 rately liable for it, and can not escape liability by 
 [431] showing that another person is liable also, nor 
 can one of several wrong-doers compel the plaintift 
 to sue him together with the persons with whom he has 
 joined in committing the wrong. X., Y., and Z., for 
 example, join in assaulting A. ; A. may sue either all oi 
 
 Woods, 2 Exch. 395 ; 17 L. J. i8g, M. C. See as to officers of county courts, 
 19 & 20 Vict. c. 108, s. 5o. 
 
 {o) 24 & 25 Vict. c. 99, s. 33. 
 
 {p) I & 2 Will. IV. c. 22, s. 73. 
 
 (q) 10 & II Vict. c. 82, s. 17. 
 
 (r) 24 & 25 Vict. c. 96, s. 113. 
 
 (x) 30 & 31 Vict. c. 155, s. 57.
 
 GENERAL RULES. 449 
 
 them or any two of them, e. g., X. and Y., or any one of 
 them, e. g., X. 
 
 If, further, A. sues X. alone, X. can not take any steps 
 to compel him to make Y. or Z. co-defendants ; and X., 
 if found guilty, will have to pay compensation, not for a 
 :hird, but for the whole, of the damage done to A. ; and 
 when X. has paid the whole of the damages, he can not 
 ::ompel Y. and Z. to repay him any part of what he 
 has been compelled to pay ; for it is a maxim of law 
 that there is no right of contribution between wrong- 
 doers. (/) 
 
 There does not exist, in short, any joint liability for a 
 wrong in the sense in Avhich there exists a joint liability 
 for a breach of contract, and the position of joint wrong- 
 doers is most clearh- seen by a comparison with that of 
 co-contractors. Suppose that X., Y., and Z. are co-con- 
 tractors, and break their contract with A. ; A. is, prop- 
 erly speaking, bound to sue them jointly. He may, 
 indeed, sue, e. g., X. alone, but X. can in general [ii) com- 
 pel him to m?ke Y. and Z. co-defendants. If, however, 
 X. can not do this, he has to pay the whole of the damages 
 for the breach of contract, but he has a right to sue each 
 of his co-contractors for a third of the amount which he 
 has been compelled to pay. 
 
 Tort must be joint. — Where an action is brought against 
 several co-defendants it is essential that the wrong com- 
 jDlained of be joint. If, for example, A. sues X., Y., and 
 Z. in trover, he must prove a joint act of conversion 
 against all of them, and if he proves separate acts of con- 
 version he must take a verdict against those defendants 
 alone who were parties, and the other defend- 
 ants must be found not guilty. (7) Where, there- [432] 
 fore, trover lies against a succession of wrong- 
 doers, as where X. takes A.'s goods and sells them to Y., 
 who re-sells them to Z., who refuses to give them up to 
 
 (t) Menyweather v. Nixan, 2 Smith, L. C, 6th cd., 481. 
 («) See aftle. 
 
 (y) Coryton v. Lithebye, 2 Wms. Saund. 117 c, note (,^); Wilbraham T. 
 Snow, Ibid., 47 u, note ( »'). 
 2U
 
 450 PARTIES TO ACTIONS. 
 
 A., the successive wrong-doers can not be sued together, 
 because they are each guilty of a dilTerent act of conver- 
 sion, /. r., of a different tort, {z) Therefore, when bank- 
 rupts and their assignees were joined as defendants in an 
 action of trover, and a verdict passed against all the 
 defendants upcMi evidence that the bankrupts, before their 
 bankruptcy, had converted the goods of the plaintiff by 
 pledging them without authority, and that the assignees, 
 after the bankruptcv, had refused to deliver them up on 
 demand, the court held that the conversions were separ- 
 ate, and granted a new trial for want of evidence of a 
 joint conversion, {a) 
 
 I. IVhat turongs can be Joint. — The great majority of 
 wrongs can be committed by two or more persons jointly, 
 and further, all persons who aid, counsel, direct, or join 
 in a trespass can be sued together, {b) Hence, every one 
 who takes part in a trespass, e. g., X., at whose command 
 Y. trespasses on A.'s land, and Z., who joins with Y. in 
 trespassing, can all be sued as joint wrong-doers. And 
 in substance the same principle applies, it is conceived, 
 to torts which do not come under the head of trespass. 
 If, for example, Y., at the command of X., converts the 
 goods of A., both X. and Y. are guilty of conversion, and 
 can be sued as for a joint act of conversion, {c) 
 
 The application of the principle that all persons who 
 take part in a trespass are jointly liable may be illustrated 
 by examining who are the persons liable to be sued for a 
 
 special kind of trespass, viz. : 
 
 [433] Trespass under color of legal proceedings, or false 
 
 imprisonment, {d) — Every person who interferes with 
 
 the liberty or property of another is prima facie a trespasser, 
 
 and is liable to an action unless he can show legal justifi- 
 
 (z) Wilbraham v. Snow, 2 Wms. Saund., 47 u, note (?). 
 
 (a) See NicoU v. Glennie, i M. & S. 588. 
 
 {b) Petrie v. Lamont, I Car. & M. 96. 
 
 (c) Wilbraham v. Snow, 2 Wms. Saund. 47 x. 
 
 {d) This tort requires special notice, from the fact that a large number oi 
 persons are often prima facie liable to an action for it, and it requires some care 
 to perceive which of them can be sued with success. This trespass need not 
 necessarily amount to false imprisonment, for it may be simply a trespass to the 
 plaintiff's goods, e.g., where they are wrongfully taken in execution.
 
 GENERAL RULES. 451 
 
 cation for his act. When, therefore, a trespass is com- 
 mitted under color of legal proceedings, e. g., when A. is 
 wrongfully arrested on a writ of ca. sa., or his goods are 
 wrongfully taken in execution, some one or more, and it 
 may be all, of the following persons must be guilty of a 
 trespass, viz., the plaintiff in the original action, his attor- 
 ney (who sued out the writ), the sheriff, and the sheriffs 
 officers. Some of these persons must be liable ; other- 
 wise there can have been no error, and no trespass has 
 been committed, and if none of them have any justification 
 they may all be sued together. But though some of these 
 persons must be liable, they are not generally all liable, 
 for some of them are, in most cases, legally justified in the 
 acts they have committed. Which are liable and which 
 are not depends upon the stage of the proceedings at 
 which the error in the process arises. 
 
 Error in foundation of process. — The proceedings may 
 be erroneous ab initio, as where a writ is issued on a 
 judgment more than a year old without a sci. fa. {e) The 
 writ in this case ought not to have been issued at all. 
 The attorney, therefore, who sued out the writ and the 
 plaintiff in the original action who employed him are both 
 liable as trespassers. (/) 
 
 The attorney is liable as being the person who 
 issues the writ, the plaintiff as being the attorney's [434] 
 employer, '* <=ince it has always been held that a 
 man is liable for the acts of his attorney in the conduct of 
 a suit at, law brought under his authority. He gives to 
 the attoinev the right to represent him, and for whatever 
 the attorney does he is responsible." If the writ is only 
 voidable, as where it is issued on an execution more than 
 a year old without a sci. fa., the plaintiff and his attorney 
 can not be sued until the writ is set aside, {g) But if it is 
 void they can be sued before it is set aside, {h) 
 
 (e) RifMcll V. raktman, 2 C. M. & R. 33 ; I'.lanclienay v. Burt. 4 Q. R. 707. 
 
 (/) Hrooks V. IIo(it;kinson, 4 H. & N. 712 ; 29 L. J. 93, Ex. ; Coclriiifion 
 V. Lloyd, 8 A. & E. 449 ; B.-irker v. Uraham, 3 Wils. 396. 
 
 ( -; rollctt V. Foster, 2 H. & N. 356 ; 26 L. J. 412, Ex. ; Esp. 414. judgment 
 of Pollock, C. B. 
 
 (Aj Blanchcnay v. Burt, 4 Q. B. 707.
 
 452 PARTIES TO ACTIONS. 
 
 The sheriff and his officers can not be sued. The 
 reason of this is that all the sheriff and his officers need 
 do is to k:>ok to the writ, which is the order of the court 
 to them, and see whctlier it justifies their proceedings. 
 If it docs, the writ itscU' can be pleaded in defense of their 
 acts under it. (/) It will not, however, justify the sheriff, 
 if the court which issues it has no jurisdiction, {k) 
 
 Process irregular in form. — The plaintiffs in the original 
 action may have a right to issue a writ; but the writ 
 issued may be irregular because of a defect in its form. 
 
 The attorney and his client are liable. The sheriff and 
 his officer are prima facie not liable. (/) But if the irreg- 
 ularity is enough to make the writ void, the client, attor- 
 ney, and sheriff are all liable, {i)i) but the officer is certainly 
 not liable unless the writ is bad on its face. 
 
 Error in execution. — The writ may be rightly issued 
 and be regular in form, and yet a mistake may be 
 [43 5 J made in executing it. The sheriff and his officers 
 are in this case liable. " There is no doubt that the 
 sheriff is liable for all acts done, and neglects of duty, by 
 the bailiff in the execution of a writ, on the ground that 
 if the sheriff thinks fit to commit the execution of a writ, 
 which he is bound to execute, to another, he is responsi- 
 ble if that person does not execute it properly, and is in 
 the same condition as if he had executed it himself, (;/) 
 the case of a sheriff differing in this respect from the 
 liability of an ordinary principal for the acts of an agent 
 who does not pursue the authority committed to him. 
 Therefore, if a sheriff's officer arrests a wrong person, or 
 
 {i) Barker v. Braham, 3 Wils. 376 ; Countess of Rutland's Case, 6 Coke, 
 54 a. 
 
 {k) Case of The Marshalsea, 10 Coke, 69. The sheriff is bound to know 
 whether the Court has jurisdiction or not ; but his officers may apparently 
 justify under any writ not ba"d on its face. Carratt v. Morley, I Q. B. 18 ; 
 Andrews v. Marris, Ibid., 3. Conf. Morse v. James, i Willes, 122. 
 
 (/) Parsons v. Lloyd, 2 W. HI. 845. 
 
 (tn) Andrews v. Marris, i Q. B. 3 ; Parsons v. Lloyd, 2 W. BI. 845. 
 
 («) Parroit v. Mumford, 2 Esp. 585. Expressions are used in Wood v. 
 Finnis which imply that the liability of a sheriff extends t'Cyond that of any 
 employer. The difference, however, between the position of a sheriff and that 
 of an ordinary master seems to be slight.
 
 GENERAL RULES. 453 
 
 arrests the right person after the return day, or takes a 
 wrong person's goods under 3. fi. fa., or even if he arrests 
 under a writ of fi. fa., or is guilty of extortion in insist- 
 ing on being paid a sum of money as the price of 
 liberation from imprisonment under a ca. sa., the sheriff 
 is liable. Though none of these acts are done in pur- 
 suance of the authority of the writ, yet they are done 
 in the execution, or, as it is said, under color of it, and 
 the sheriff" is exactly in the same position as if he had done 
 these acts himself." {o) 
 
 The sheriff" is not liable for wrongful acts of his officers 
 which are not done under color of the writ, e. g., for an 
 act of extortion committed by a person who is not the 
 person to whom the writ is addressed, {p) The plaintiff" 
 and his attorney are not liable unless they interfere in 
 the execution of the writ, in which case they are. {g) 
 
 What torts can not be joint. — Some few torts, [436] 
 such as slander (and perhaps seduction), can not be 
 the act of more than one person. For " one action will 
 not lie against several persons for speaking the same 
 words, as where a man brought an action against two foj 
 saying ' thou hast stolen plate, . . . and we do arrest 
 thee of that felony,' and, there being a verdict for the 
 defendant, it was moved in arrest of judgment, that the 
 action does not lie against two jointly, because the words 
 of the one are not the words of the other; but there 
 ouofht to have been several actions, in like manner, as two 
 persons can not bring a joint action for words ; and so it 
 was resolved bv the court, for these several causes can 
 
 (o) Woods V. Finnis, 7 Exch. 371. per Curiam. See Smart v. Hiitton, 8 A. 
 & E. 568 ; Gregory v. Coiterell. 5 E. & B. 571 ; 25 L.J. 33. Q- l^. (Ex. Cli.) 
 ka])h.'iel V. Goodman. 8 A. & E. 565. 
 
 (/) Slack V. brander, I Esp. 42 ; George v. Pcrring 4 Esp. 63. 
 
 (y) .Meredith v. Flaxman. 5 C. & I'. 99. Conf. Cronsliaw v. Chapman. 7 H. 
 & N. gii ; 31 L. J. 277. Ex. ; Collins v. Evans, 5 Q. 15. 820 ; 13 \.. J. rSo. Q. 
 15. ; Childcr, v. Wooler, 29 \.. J. 129. Q. B. ; Ilumphrys v. Pratt. 5 I'.ligh, N. S., 
 154 ; I).ivi.-s V. Jenkins. Ii M. & W. 745 ; 12 L. J. 386. Ex. ; Rowlcs v. Senior, 
 8 Q. Ii. 677 ; 15 I.. J. 231. Q. H. ; Green v. El^'ec. 5 Q- «■ 99 : '•» I- J- '<^2- Q- 
 B. The sheriff is not liable for arrest of privileged persons. Countess of Rut- 
 bnd's Ca^e. 6 Coke, 54 a ; Philips v. Naylor, 3 II. & N. 14 ; 27 L. J. 223, 223. 
 K^ I II. \ N. 565 ; 2.5 L. J. 225, Ex. (Ex. Ch.).
 
 454 FAR HI: S TO ACTIONS. 
 
 no more produce a joint action than their words and 
 tongues may be said to be one." (r) 
 
 Judgment recovered. — A judgment recovered against 
 one of several Avrong-dt)ers is (even without execution or 
 satisfaction) a bar to an action against the others for the 
 same cause of action. If X., Y., and Z. arc joint wrong- 
 doers a judgment against X. for the joint wrong is a bar 
 to an action against Y. or Z. {s) 
 
 But, as a general rule, a judgment against one person 
 for one cause of action can not be a defense to an action 
 against another person for another cause of action. But 
 to this principle there is an exxeption in the case of 
 actions for conversion, or for trespass to goods. It has 
 been already pointed out that if X. converts the goods of 
 A. and sells them to Y., who refuses to give them up to A., 
 X. and Y. are each liable to be sued by A. It is clear,^ 
 also, that there is in this case a separate cause of action 
 against each, yet the recovery of a judgment by A. 
 against X., if followed by satisfaction, is a bar to 
 [437] an action against Y. (/) The reason of this pecu- 
 liarity appears to be that the damage to A. is the 
 loss of the chattel ; and though the conversion by X. is 
 different from the conversion by Y., compensation by the 
 one satisfies the claim of the plaintiff, and is therefore a 
 defense in an action against the other. Hence, the mere 
 judgment is no defense unless accompanied by satisfaction. 
 When, therefore, the plaintiff has obtained a merely inter- 
 locutory judgment against the defendant he may drop the 
 action and proceed against the other ; {ii) and where the 
 damage is not estimated on the footing of the full value of 
 the goods this fact is, it seems, an answer to a plea of 
 judgment recovered against one defendant in an action 
 brought against the other, {x) A more technical ground, 
 sometimes given for the effect of judgment and satisfaction, 
 is that " by recover}- in trespass for taking, or trover for 
 
 (r) Coryton v. I.itheliye, 2 Wms. Saiind. 117 c. 
 
 (s) Ding V. Hoare, 13 M. & \V. 494; 14 L. J. 29, Ex. 
 
 (/) Cooper V. Shepherd, 3 C. 15. 266 ; 15 L. J. 237, C. P. 
 
 (m) Marston v. Phillips, 12 W. R. S. 
 
 (x) Wilbraham v. Snow, 2 Wms. Saiind. 47 d c, note («).
 
 GENERAL RULES. 
 
 455 
 
 converting, personal chattels, followed by satisfaction, the 
 property is altered, and rests in the defendant; for solutio 
 pretii emptionis loco habetur." {y) 
 
 Torts foutided on contract, (s) — As a plaintiff can be 
 compelled by a plea in abatement to sue all of several co- 
 contractors, but ma}', at his option, sue any one or more 
 of several joint wrong-doers, the question arises whether, 
 when an action is brought for a tort founded on contract, 
 a plaintiff can or can not be compelled to join all the per- 
 sons who are parties to the contract ; or, m other words, 
 whether he can avoid a plea in abatement b}'- treating a 
 breach of contract as a tort. 
 
 The answer to this inquiry is, that what must be looked 
 to is the real nature, and not the form, of the action, 
 " therefore if an action be brought against one only 
 of several persons, upon niatter founded in contract, [438J 
 though the form of the action be case for malfeas- 
 ance or non-feasance, and the plea not guilty [i. c, though 
 the action be in form an action for tort], the defendant 
 [may] plead it in abatement, (a) . . . and from all the 
 cases, and especially from Bretherton v. Wood, {d) the 
 principle appears to be this, that where the action is 
 maintainable for the tort simply without reference to any 
 contract made between the parties, no advantage can be 
 taken of the omission of some defendants, or of the joinder 
 of too many ; (^)as, for instance, in actions against carriers 
 which are grounded on the custom of the realm. But 
 where the action is not maintainable without referring to 
 a contract between the parties, and laying a previous 
 ground for it by showing such contract, there, although 
 the plaintiff shapes his case in tort, yet he shall be liable 
 to a pica in abatement if he omit anv defendant, or to a 
 
 (y) Ibid. 47^^ ; Bird v. Randall, 3 Burr. 1345; BucUlaiul v. Johnson, 15 
 C. B. 145 ; 23 L. J.204, C. r. 
 
 (z) See a/i/c'. 
 
 {f?) Towfll V. Layton, l B. & P., N. R.. 365 ; Max v. Roberts, Ibid. 454 ; 
 Wcall V. King, \2 East, 452; Lush, I'ractic;, 3rd ed. 212; Bullen, rica<iintj3, 
 3rd c(i., 708 ; Cabell v. Vaughan, i Wins. Saund. 291 e, 291 /. 
 
 (6) 3 H. & B. 5.1. 
 
 (O ChajMcr XXXIV.
 
 456 PARTIES TO ACTIONS. 
 
 nonsuit if lie join too many, for he shall not, by adopting 
 a particular form of action, alter the situation of the 
 defendant." [d) 
 
 It is, however, as already pointed out, {c) sometimes 
 difficult to determine whether a given action is, in sub- 
 stance, an action ex contractu, or an action ex delicto. 
 
 Exception. — Persons sued as joint owners of land. 
 
 There is a distinction between ordinary actions for tort 
 and those which are brought against persons in respect 
 of their common interest in land ; for if one only of 
 several joint tenants or tenants in common is sued for an 
 injury arising from the state of their land, the non-joinder 
 
 of the other co-tenants may be pleaded in abate- 
 [439] nient, and this rule applies to partners as well as to 
 
 persons who are not partners. (/) 
 
 Rule 99. — The liability to be sued for a tort can 
 not be transferred or assigned. 
 
 This is a mere application of the general principle, {g) 
 that the liability to be sued can not be transferred. 
 
 Exception. — Assignment by death 
 
 The one real exception to this rule is, that the liability 
 to be sued for some torts is assigned by death, i. e., the 
 personal representatives of the wrong-doer can in some 
 cases be sued for wrongs committed by him. {h) 
 
 An apparent rather than a real exception arises in the 
 case of marriage. A woman remains after as before mar- 
 riage liable for the torts committed by her, but since she 
 
 {d) Cabell v. Vaughan, i Wms. Saund. 291 /. 
 (e) See ante. 
 
 if) See I Lindley, Partnership, 2nd ed.. 489 ; i Wms. Saund. 291 /Sag. 
 Mitchell V. Tarbutt, 5 T. R. 649. 
 ( g ) Rule 9. 
 (h) Chapter XXXII.
 
 GENERAL RULES. 457 
 
 can not during coverture be sued alone, her husband 
 must be joined as defendant in actions for wrongs done 
 by her. {i) 
 
 Rule ioo. — Each wrong-doer's separate liability 
 to be sued for a tort passes on his death (if it survives 
 at all) to his personal representatives. The joint 
 liability of several wrong-doers passes on the death 
 of each to the survivors. 
 
 X., Y., and Z. commit a joint tort against A., e. g.y 
 convert his goods. X., and Y., and Z. are each hable to 
 be sued separately. This separate liability passes 
 on the death of Z. (supposing it to survive him at [440] 
 all) {k) to M., his representative. 
 
 X., Y., and Z. are further liable to be sued jointly. 
 This joint Hability survives on the death of Z. against X. 
 and Y., but it does not pass to M., Z.'s representative. 
 In other words, after Z.'s death A. may sue either X. or 
 Y., or X. and Y., or M. ; but he can in no case sue X., 
 and Y., and M. 
 
 Joint wrong-doers are, in fact, in the same position as 
 persons who have broken both a joint and several con- 
 tract. The common liability on the joint contract passes 
 on the death of one contractor to the surviving contract- 
 ors. The separate liability of each on his separate 
 contracts passes on the death of each to his representa- 
 tives. 
 
 (;■) Rule 107. The liability for torts is in no case transferred by bank- 
 fuplcy. 
 
 (k) Chapter XXXII.
 
 458 
 
 PARTIES TO ACTIONS. 
 
 CHAPTER XXVI. 
 
 PRINCIPAL AND AGENT. 
 
 Rule ioi. — A principal is liable to be sued for 
 the torts of an agent either committed by the com- 
 mand of the principal, or subsequently assented to or 
 ratified by him.* 
 
 I. Exum V. Bristor, 35 Miss. 391 ; 
 Elliott V. McKay, 4 Jones, 60 ; Mc- 
 Mahon v. Davidson, 12 Minn. 373; 
 and if the principal sue the agent 
 for the results of his act, he ratifies 
 it. Partridge v. White, 56 Me. 
 564; Harris v. Miner, 28 111. 135; 
 Drennan v. Walker, 21 Ark. 539; 
 Shiras v. Morris, 3 Cow. 60 ; Peters 
 V. Ballestier, 3 Pick. 495 ; Cope- 
 land V. Ins. Co., 6 Pick. 198 ; 
 Frank v. Jenkins, 22 Ohio St. 597 ; 
 and it is the same if he receive any 
 subsequent benefit from the tort; 
 Veazie v. Williams, 8 How. 138; 
 Doggett V. Emmerson, 3 Story, 
 700 ; Davis v. Bemis, 40 N. Y. 453 ; 
 Allerton v. Allerton. 50 N. Y. 670 ; 
 Elwell V. Chamberlain, 31 N. Y. 
 619; Kibbs V. Insurance Co., 11 
 Gray, 163 ; Lee v. West, 47 Ga. 
 311 ; Morton v. Scull, 23 Ark. 289. 
 But it is doubtful if a city govern- 
 ment can knowingly ratify the neg- 
 ligent acts of its officers. Mitchell 
 
 V. Rockland, 52 Me. 125; Perley v. 
 Georgetown, 7 Gray, 464. 
 
 The principal is liable for the 
 tortious acts incident to the agency. 
 Detroit v, Corey, 9 Mich. 165; 
 Darmstetter v. Moynaham, 27 
 Mich. 188. 
 
 So, when the employment gives 
 the agent means or opportunity 
 which he uses while so employed to 
 commit an injury to another. New 
 Orleans, &c., Ry. Co. v. Allbritton, 
 38 Miss. 277 ; Mayee v. McLure. 
 36 Miss. 400. But a public officer 
 is not liable for the torts of his sub- 
 ordinates. Franklin v. Low. i 
 Johns. 396 ; Bayley v. Mayor, 5 
 Hill, 531 ; McMillan v. Eastman, 4 
 Mass. 378; Schroyer v. Lynell, 8 
 Watts, 453; Richmond v. Long, 17 
 Gratt. 375 ; Sawyer v. Corse, 19 
 Gratt. 230 ; but see Ogden v. Max- 
 well, 3 Blatchf. 319. 
 
 When a third person had a right 
 to believe the agent was acting
 
 PRINCIPAL AND AGENT. 
 
 4S9 
 
 If A., by the command of P., commits a tort against 
 T., e. g., converts his goods, {a) P. is liable to be sued as 
 well as A. P. is liable, strictly speaking, not as principal 
 or master, but as a joint wrong-doer, {b) 
 
 P. can, therefore, be sued directly for the tort, and if 
 
 (<j) Throughout this chapter P. stands for the principal, or employer ; A. the 
 agent or servant employed ; T. the third party injured. 
 
 {b) Story, Agency, s. 455 ; Smith, Master and Servant, 2nd ed., 207. 
 
 within his authority, though he was 
 acting in excess or abuse of it, the 
 principal is responsible. Walsh v. 
 Hartford Ins. Co., 73 N. Y. 10; 
 Armour v. Michigan Cent. Ry. Co., 
 65 N. Y. 122 ; Barnard v. Wheeler, 
 24 Me. 414. But where the agent 
 has liberty to take his own course, 
 the principal is not liable. Milliard 
 V. Richardson, 3 Gray, 349 ; Lin- 
 ton V. Smith, 8 Gray, 147 ; Forsyth 
 V. Hooper, 11 Allen, 419; Clark v. 
 Railroad, 28 Vt. 103 ; Metz v. Buf- 
 falo, &c., R. R. Co., 58 N. Y. 61 ; 
 Kelly V. Mayor, 11 N. Y. 432; 
 Pfau V. Williamson, 63 111. 16 ; De 
 Forrest v. Wight, 2 Mich. 388; 
 Cincinnati v. Stone, 5 Ohio St. 38; 
 Barry v. St. Louis, 17 Mo. J 21. 
 Unless the principal expressly re- 
 tained the right to interfere. Stone 
 V. Codman, 15 Pick. 297; Chicii.go 
 V. Joney, 60 111. 383 ; Luttrell v. 
 Hazen, 3 Sneed, 20; and it is no 
 defence that he forbade the aa. 
 Philadelphia, &c., R. R. Co. v. 
 Derby, 14 How. 468; Goddard v. 
 Railroad Co., 57 Me. 202; Bryant 
 V. Rich, 106 Mass. 180; Weed v. 
 Railroad Co., 17 N. Y. ;62 ; Cos- 
 
 grove V. Ogden, 49 N. Y. 255 ; 
 Penn. Steam. Nav. Co. v. Hunger- 
 ford, 6 Gill & J. 291 ; Priester v. 
 Angley, 5 Rich. 47 ; Passenger R. 
 R. Co. V. Young, 21 Ohio St. 518; 
 Sherley v. Billings, 8 Bush, 147 ; 
 Moir V. Hopkins, 16 111. 213; Gar- 
 retson v. Duenckel, 50 Mo. 104. 
 
 If the agent is responsible, he and 
 the principal may be severally 
 liable. Creed v. Hartman, 29 N. 
 Y. 591 ; Sproul v. Hemingway, 14 
 Pick. I ; Gaso v. Coblentz, 43 Mo. 
 337 ; Sewall v. St. Paul, 20 Minn. 
 511; or they may be sued jointly ; 
 Hewitt v. Swift, 3 Allen, 420; 
 Phelps V. Wait, 30 N. Y. 78 ; Hun- 
 ter V. Hudson, 20 Barb. 493; Car- 
 man V. Railroad, 4 Ohio, 399 ; 
 Galena R. R. Co. v. Rae, 18 lU. 
 488; Severin v. Eddy, 52 111. 189. 
 
 An agent is personally liable for 
 deceit. Howe v. Newmarch, 12 
 Allen, 49; Atlantic Co. v. Mcr 
 chants' Co., 10 Gray, 532 ; Durst v. 
 Barton, 47 N. Y. 167 ; Griswold v. 
 Haven, 25 N. Y. 595 ; Fox v. 
 Northern Liberties, 3 W. & S. 103; 
 Moore v. Sanborne, 2 Mich. 519; 
 Evansville v. Baum, 26 Ind. 70.
 
 46o PARTIES TO ACTIONS. 
 
 the wrong itself is one for which trespass lies, e. g., an 
 assault, or an arrest, can be sued as a trespasser. His 
 liability does not depend upon the existence of the rela- 
 tion of master and servant, (^r) and therefore may arise 
 where this relation does not exist. P. was driving in a 
 hired carriage, and ordered the postilion to drive in a 
 reckless manner. He was held responsible for an injury 
 caused by such driving, though the owner of the carriage 
 was the postilion's master, and would be, as a general 
 rule, the person liable for torts committed by him while 
 driving, {d) "The cases in which it has been decided 
 that an action will not lie against the hirer of a car- 
 [442] riage and horses for the misconduct of the driver, 
 not being his servant, do not apply here ; for this is 
 an action treating the defendant as a co-trespasser, and is 
 not brought against him as a master for the misconduct 
 of his servant. The mere fact of the defendant being one 
 of the persons who hired the carriage and horses would 
 not make him liable in this action ; but it must be shown 
 that he was assenting to the act from which the injury 
 occurred to the plaintiff." {e) 
 
 If P. expressly commands A. to do a wrongful act it 
 is easy to see that he is a joint wrong-doer with A. But 
 a person may be looked upon as authorizing or command- 
 er-) McLaughlin v. Pryor, 4 M. & G. 48. 
 (d) See Rule 102. 
 
 {e) McLaughlin v. Pryor, 4 M. & G. 60, judgment of Erskine, J. It is of 
 importance to distinguish the direct liability of a person who orders a wrong to 
 be committed, and therefore is looked upon as a joint wrong-doer, with the 
 person through whose instrumentality the injury is done, from the indirect lia- 
 V)ility of a master for the acts of his servants. In the first case the principal 
 is liable, because the act complained of is his own act ; in the second case the 
 employer is liable, not because he did, or authorized, the particular act, but 
 because his employment of a negligent servant has led to tlie act complained 
 of being done. The distinction is very nearly equivalent to that between tres- 
 pass and case. Wherever a master can be sued in trespass he must be consid- 
 ered as directly authorizing the wrong done, and where he is only indirectly 
 responsible he must be sued in case. There are, however, torts for which the 
 principal is directly responsible, but for which the only form of action against 
 either principal or agent is case, e. g., an action for fraud or for conversion 
 (since trover is a species of case). See Smith, Master and Servant, 2nd ed., 207 ; 
 Scott V. Shepherd, r Smith, L. C, 6th ed., 417 ; Sharrod v. London and North- 
 Western Rail. Co., 4 Exch 580.
 
 PRINCIPAL AND AGENT. 461 
 
 ing, and tnerefore as directly responsible for, the commis- 
 sion of wrong-s which he does not order. Thus, if a 
 wrongful act on the part of a servant be a direct or neces- 
 sary^ consequence of an act which his master has ordered 
 to be done, his master will be directly liable for the 
 wrongful act itself. " Suppose the case of two persons 
 possessed of contiguous unenclosed land, and that one 
 of them desired his servant to drive his cattle, but not 
 to let them go upon the land of his neighbor ; the mas- 
 ter will be answerable in trespass [i. e., directly for the 
 act], because he has only a right to expect from 
 his servant ordinary, and not extraordinar}', care. [443] 
 If the servant, therefore, in carrying into execution 
 the orders of his master, uses ordmar}^ care, and an injur}' 
 is done to another, the master is liable in trespass. If 
 the injury arise from want of ordinar}' care the master 
 will only be liable in case " ; (/") or, to put the distinction 
 in less technical language, if P. employs A. to do an act 
 which naturally leads to the commission of a wrong, P. 
 is directly responsible for the wrong itself, just as if he 
 had ordered that wrong to be committed ; whilst, on the 
 other hand, if P. employs A. to do an act which may be 
 done without the commission of any wrong, and A., 
 through his carelessness or incompetence, injures T. in 
 the course of carrying out T.'s directions, then P. is not 
 responsible f(jr the act itself, though, if he is A.'s mastcV, 
 he may be responsible for the consequences of employing 
 an incompetent servant, {g) 
 
 If, again, a wrongful act be committed by a servant in 
 the usual course of his employment, although there be no 
 express command on the ])art of his master to do the 
 specific act complained of, yet in such cases the master 
 
 ( /) Gregory v. Piper. 9 15. & C. 591. 594. jiKigmcnt of Lrni.KDAi.K, J. 
 
 ( g) See Rule 102. On this point the following cases should be compared : 
 McManus v. Cricket, l East, 106 ; Gordon v. Kolt, 4 Exch. 365, esp. 366, 367 ; 
 •Sharrod v. London and Nortii-Wcsiern Rail. Co., 4 E.Nch. 580; Goff v. Great 
 Northern Rail. Co., 30 L.J. 14S, Q. H. ; Siymour v. Greenwood, 6 H. & N. 
 359 : 30 L. J. 189. Ex. ; 7 ir. & N. 355 ; 30 L. J. 327, Ex. (Ex. Ch.). This dis- 
 tinction between direct and indirect lial>ility m.iy appear a fine one, but is of 
 consequence, and will be f')und to cx|)lain some cases in which persons are 
 responsible for the acts of others who yet are not their servants.
 
 462 PARTIIiS TO ACTIONS. 
 
 may be liable to an action of trespass, i. e., as bein^ 
 directly responsible lor the act, for a command will be 
 implied from the nature of the servant's employment, {h) 
 But the direct liabilit}- in such instances can, it is con- 
 ceived, be with difficulty distinguished from a master's 
 indirect liability for the acts of his servant done in the 
 
 course of his employment, {i) 
 [444] Ratification, ik) — The person who ratifies a tort 
 
 becomes a wrong-doer from the beginning. (/) 
 Thus, if P. ratifies the unauthorized purchase by A., his 
 agent, of a chattel which the vendor had no right to sell, 
 P. is guilty of conversion, although at the time of the 
 ratification he had no knowledge of the circumstances 
 which made the sale unlawful. (;«) 
 
 The following points should be noticed : 
 
 1st. In order that the principal may be bound, the 
 tort {c. g., a trespass) must, at the time when A. com- 
 mitted it, have been intended to be done on behalf, and 
 for the benefit, of P. ; or, as it is sometime expressed, (;/) 
 in the name, and avowedly on behalf, of P. " He that 
 receiveth a trespasser, and agreeth to a trespass after it 
 is done, is no trespasser, unless the trespass was done to 
 his use or for his benefit, and then his agreement subse- 
 quent amounteth to a precedent commandment." {d) 
 
 2nd. The principal must, in order to be liable, unequiv- 
 ocally adopt the act, and it would seem, though this 
 point is not quite clear, that the act must be ratified and 
 adopted by him, either with the full knowledge of it 
 being tortious, or else with the intention of adopting the 
 act, whether right or wrong. (/ ) 
 
 3rd. A principal may sometimes take advantage of a 
 
 {h) Smith, Master and Servant, 2nd ed., 2o3. 
 
 (?) See Rule 102. 
 
 {k) See anfe. 
 
 (/) iJird V. Brown, 4 Ex. 7S6 ; 19 L. J. 154, Ex. ; Addison, Torts, 3rd ed , 
 932, 933- 
 
 (jn) Hilbery v Hatton, 2 H. & C. 822 ; 33 L. J. 190, Ex. 
 
 («) See Addison, Torts, 3rd ed., 932. 
 
 {o) Coke, 4 Ins. 317. 
 
 (/) Compare Addison. Torts, 3rd ed.. 932 ; Roe v. Birkenhead Rail. Co., 7 
 Exch. \f^\ Hilbery v. {4atton 2 H. & C. 822 ; 33 L. T. IQO. Ex.
 
 PRINCIPAL AND AGENT. 463 
 
 wrongful act done on his behalf, if it were one which, 
 though wrongful in the person who did it, might have 
 been lawfully done by the principal who ratifies it. {q) 
 " If A., professing to act by my authority, does that which 
 prima facie amounts to a trespass, and I afterw^ards 
 assent to and adopt his act, there he is treated as 
 having from the beginning acted by my authority, [445] 
 and I become a trespasser, unless I can justif}^ the 
 act which is to be deemed as having been done by my 
 previous sanction. So far there is no difficulty in applying 
 the doctrine of ratification, even in cases of tort. The 
 party ratifying becomes as it were a trespasser by estoppel ; 
 he can not complain that he is deemed to have authorized 
 chat which he admits himself to have authorized. But 
 the authorities go much further, and show that in some 
 cases where an act which, if unauthorized, would amount 
 to a trespass, has been done in the name and on behalf of 
 another, but without previous authority, the subsequent 
 ratification mav enable the party on whose behalf the act 
 was done, to take advantage of it, and to treat it as having 
 been done by his direction. But this doctrine must be 
 taken with the qualification that the act of ratification 
 must take place at a time, and under circumstances, when 
 the ratifying party might himself have lawfully done the 
 act which he ratifies." (r) 
 
 Rule 102. — An employer or master is liable to be 
 sued for the torts of his servant if committed in the 
 course of the servant's employment, and for his 
 master's benefit, or in other words, in the service of his 
 master, {s) ' 
 
 (<7) iJird V. Brown, 4 Excli. 786; rg L. J. 154. Ex. 
 
 (r) liiid V. Brown, 4 Exch. 799, per Curiam. The principle, though chiefly 
 ■ illustrated by actions for trespass, applies to actions for other wrongs. See 
 Addison, Torts, 3rd ed., 853, 854; liilbery v. Hatton, 2 H. & C. 822; 33 L 
 J. 190, Ex. ; Giles v. Tafl" Vale Rail. Co., 2 E. & B. 822. 
 
 {s) Sec Limpus v. London General Omnibus Co., i H. & C. 526; 32 L. J 
 34, Ex. (Ex. (Ti.); Seymour v. Greenwood, 30 L.J. 192, Ex., judgment ol 
 Martin, 1'. ; Lauglierv. rointer, 5 B. &C. 547. 554 : Quarman v. Burnett, 6 M 
 & W. 499 ; Barwick v. English Joint Stock Bank, L. R. 2, Ex. 259 (Ex. Ch.). 
 
 1. When a master employs a ser- use force against another's person 
 vant in a service in which he must or property, and the servant about
 
 464 rJK77J':S TO ACTIONS. 
 
 If P. orders A. to commit a tort, P. is directly responsi- 
 ble for it, as being in cIToct himself the wrong-doer. 
 [446] But a person who cnijiloys another as his servant 
 incurs an indirect liability of a more extensive^ 
 character, for he is responsible, not only for acts which he 
 either directly or indirectly orders, but also for all the 
 acts or omissions which, even though the employer does 
 not order them, are committed by his servant in the course 
 of his service, or, in other words, which are the result of 
 the master's employing the servant, {t) "A master is 
 ordinarily liable to answer in a civil suit for the tortious 
 acts of his servant, if these acts are done in the course of 
 nis employment in his master's service. . . . This rule, 
 with some few exceptions, {u) . . is of universal appli- 
 cation, whether the act of the servant be one of omission 
 or commission ; whether negligent, fraudulent, or deceit- 
 ful, {x) or even if it be a positive act of malfeasance or mis- 
 conduct ; if it be done in the course of his employment, 
 the master is responsible for it civiliter to third persons ; 
 {y) and it makes no difference that the master did not 
 actually authorize, or even know of, the servant's act or 
 neglect, for even if he disapproved of or forbade it, he is 
 equally liable if the act be done in the course of the ser- 
 
 (t) The liability of a master for the acts of his servant is analogous to the 
 liability of an owner for injuries committed by animals belonging to him. 
 Neither the master nor the owner is liable, because he has himself done the 
 particular act complained of. He is responsible, because the wrong is the 
 result of his having, in the one case, emplo3'ed, <?. ^., an incompetent servant, 
 and in the other, kept an animal of habits injurious to his neighbors. 
 
 («) For exceptions, see post. 
 
 {x) Compare Chapter XXVIII. 
 
 (;') Story, Agency, s. 452 ; Paley, Agency, 294-298. 
 
 such employment uses it unlavir- or forbidden by the master. Phila- 
 
 fuUy to an unlawful extent, the delphia, &c., Ry. Co. v. Derby, 14 
 
 master and he are liable jointly as How. 486; Maddox v. Brown, 71 
 
 trespassers. Holmes v. Wakefield, Me. 433 ; Simonton v. Loring, 68 
 
 12 Allen, 581; Hewitt v. Swift, 3 Me. 164; Goddard v. Grand Trunk 
 
 Allen, 422; Moore v. Fitchburg Ry. Co., 57 Me. 211 ; Atlantic, &c., 
 
 Ry., 4 Gray, 467. The master is Ry. Co. v. Dunn, 19 Ohio St 167; 
 
 responsible for the torts of his ser- Chicago, &c., Ry. Co. v. Williams, 
 
 vant in the course of his employ- 55 111. 186; Garretson v. Duenckel, 
 
 ment, whether it be negligent, 50 Mo. 107 ; Redding v. South 
 
 fraudulent or deceitful, authorized Carolina Ry. Co., 3 S. C. 6.
 
 PRINCIPAL AND AGENT, 46$ 
 
 vant's employment." {s) " I am liable," it has oeen said 
 in the House of Lords, " for what is done by me, and 
 under m}^ orders, by the man I employ, for I may turn 
 him off from that employ when I please. The reason I 
 am liable is this, that by employing him I set the whole 
 thing in motion, ajid what he does, being done for my 
 benefit, I am responsible for the consequences of 
 doing it." {a) " The master is responsible for the [447] 
 acts of his servant, and that person is, without doubt, 
 liable who stands in the relation of master to the wrong- 
 doer ; . . . who has selected him as his servant from 
 the knowledge and belief in his skill and care, and who 
 can remove him for misconduct, and whose orders he is 
 bound to receive and obey." (l?) 
 
 Moreover, though in some cases " it is laid down that 
 the plaintiff is bound to show that the act of which he 
 complains is done by the authority, express or implied 
 of the [master], the criterion is not whether the master 
 has given the authority to the servant to do the particular 
 act, but whether the servant does it in the ordinary 
 course of his employment." (c) It is, in fact, to be 
 specially noted that the employer's liability does not 
 depend upon his ordering the particular act ; for he may 
 be responsible, even though he forbid it ; {d) and the 
 cause of this extended liability seems to be, that if an 
 employer were not made responsible for wrongs com- 
 mitted in his service the injured person would be con- 
 stantly without remedy, (e) 
 
 It has been maintained that fraud stands in a different 
 position from other torts, and that an employer is not 
 liable to be sued for the fraud of his agent unless he has 
 authorized the particular fraudulent representation com- 
 plained of. (/) But though this view may be supported 
 
 (c) Smith, Master and Servant, 2ntl ed., 183, i?4. 
 (a) Duncan v. Findlatcr, 6 CI. & Fin. 894, per Lord l^ROOM. 
 (/') Quarman v. I'.urnctt, 6 M. & W. 4()9, per CURIAM. 
 (<■) Seymour v. Greenwood, 30 L. J. 192, Ex., per Martin, B. 
 (</) Lipus V. London General Omnibus Co., I IL & C. 526 ; 32 L. J. 34, 
 Ex. (Ex. Ch.). 
 
 {e) Ibid., 32 L. J. 46. Ex. (Ex. Ch.), judgment of Wiu.F.s, J. 
 (/) Set I'.cnjamin, Sale, 350; r,.rnf....i v K..wks, 6 M.& W. 358 ; Udell ▼ 
 30
 
 i66 PARTIES TO ACTIONS. 
 
 by good authority, the better opinion seems to be that 
 " with respect to the question whether a principal 
 [448] is answerable for the act of his agent in the course 
 of his master's business and for his master's benefit, 
 no sensible distinction can be drawn between the case of 
 fraud and the case of any other wrong. The general 
 rule is that the master is answerable for every such wrong 
 (^f the servant or agent as is committed in the course of 
 the service, and for the master's benefit, though no express 
 command or privity of the master be proved. ... In 
 all [the] cases [in which the master has been held liable], 
 it may be said that the master has not authorized the act. 
 It is true he has not authorized the particular act, but he 
 has put the agent in his place to do that class of acts, and 
 he must be answerable for the manner in which the agent 
 has conducted himself in doing the business which it was 
 the act of his master to place him in." {g) 
 
 One peculiarity in the nature of fraud must, however, 
 be taken into account, which is, that since to constitute 
 fraud there must exist both a statement untrue in itself 
 and knowledge on the part of the person who makes it of 
 its untruth, or at any rate absence of belief in its truth, it 
 may happen that where a false representation is made by 
 an agent, the agent who makes the untrue statement 
 believes it to be true, whilst the principal who knows it to 
 be false, has, though employing the agent to transact his 
 business, not authorized or intended him to make the 
 particular % statement. Under these circumstances, the 
 principal can not be made liable for the fraud by combin- 
 ing his knowledge with the act of the agent, iji) But 
 here there is no real exception to the rule that an employer 
 IS liable for torts committed by his servant in the course 
 of his employment. The reason why the principal can 
 not be sued is that it is " impossible to sustain a charge of 
 
 Atherton, 7 H. & N. 172 ; 30 L. J. 337. Ex. ; Western Bank of Scotland v. 
 Addie, L. R. i, Sc. App. 745. See, further, as to the liability of a corporation 
 for fraud. Chapter XXVIII." 
 
 ig) Barwick v. English Joint Stock Bank L. R. 2, Ex. 265-267 (Ex Ch.) 
 per Curiam. 
 
 (/4) Cornfoot v. Fowke, 6 M. & W. 358.
 
 PRIXCIPAL AXD AGENT. 467 
 
 fraud when neither principal nor agent has committed 
 any, — the principal because, though he knew the fact, he 
 was not cognizant of the misrepresentation being 
 made, nor even directed the agent to make it ; and [449] 
 the agent, because, though he made a misrepresenta- 
 tion, yet he did not know it to be so at the time when he 
 made it." (z) 
 
 A master's liability is not diminished by the fact that 
 the servant who commits a tort has been appointed, not 
 by the master directly, but indirectly through the inter- 
 vention of an agent, e. g., a steward. In order to make 
 P. liable for A.'s acts as his servant, it is necessary to 
 establish, first, that A. was, at the time of committing the 
 act complained of, P.'s servant ; secondly, that the act w^as 
 done in the course of A.'s employment as P.'s servant. 
 
 \st Qiiestion. — Was the servant the defendant's servant? 
 *' The law does not recognize a several liability in tw^o 
 principals who are unconnected. If they are jointly 
 liable you may sue either, but you can not have two sep- 
 arately liable." {k) P. and M., that is to say, may be 
 joint employers of A. (/) in which case they may be sued 
 either jointly or separately for torts committed by A. in 
 their service. But if ^. and M. are unconnected, any 
 act done by A. will be considered done in the service 
 cither of P. or of M., as the case may be, but the same 
 act will not be considered as done in the service both of 
 P. and of M. It was, for instance, at one time doubted 
 whether the coachman who drives a hired carriage is the 
 servant of the owner of the carriage, or of the hirer, and 
 it was laid down that " he is the servant of one or the 
 other, but not the servant of one and the other. You 
 must bring your action either against the principal or 
 against the coachman who commits the injury, but you 
 can not bring it against the owner and [against] the hirer 
 of the carriage." (;//) It is now settled («) that the 
 
 ( 1 ) Comfoot V. Fowke, 6 M. & \V. 358, 372, per Ai.dkrso.n, B. 
 
 (k) Laugher v. Pointer, 5 li, & C. 547. 559. P" Ci'RiAM. 
 
 (/) Chapter XXVII. 
 
 (m) I,aii(,'hcr v. Pointer, 5 P.. & C. 556. per LlTll.l.UALE. J. 
 
 («) Quarman v. P.urTiett, 6 M. & W. 491;.
 
 468 PARTIES TO ACTIONS. 
 
 [450] owner, and not the hirer, of the carriage is the 
 master of the coachman, and that therefore the 
 owner, and not the hirer, is liable for damage caused by 
 the coachman's negligent driving ; {o) assuming, of course, 
 that the coachman is supplied by the person who lets the 
 carriage, for if the hirer supplies the coachman, he is his 
 master, and liable for his negligence. 
 
 The principle on which the question under considera- 
 tion must be answered is, it seems, that A. is the servant 
 of the person by whom he can be dismissed, and not of 
 the person who employs and may even pay him, but has 
 no powder to dismiss him. This may be the case with ser- 
 vants at hotels. They frequently receive no wages from 
 the innkeeper, but trust entirely to what they receive from 
 the persons who resort to the hotel, yet they are not the 
 less the servants of the innkeeper. (/ ) 
 
 Contractor s servants not servants of employer. — A person 
 who employs another (commonl)- called a contractor) 
 to perform any service for him, e. g., build a house, is 
 not the employer of the contractor's workmen or other 
 servants, and is therefore, as a general rule, not liable 
 for torts committed by them. Where, for instance, a 
 company employed a contractor to build a viaduct, and a 
 man was killed, owing to negligence on the part of the 
 contractor's workmen, the company, though it had re- 
 served to itself the power to dismiss incompetent w^ork- 
 men, if the contractor should employ them, was never- 
 theless held not to be liable, {q) So, where a butcher 
 bought a bullock in Smithfield Market, and employed a 
 licensed drover to drive it home, and the drover employed 
 a boy through whose negligence the bullock injured the 
 plaintiff's property, the butcher was held not 
 [451] liable, (r) A builder, employed to make alterations 
 at a club-house, including the fixing of certain gas- 
 fittings, made a sub-contract with a gasfitter to do this 
 
 {o) Quarman v. Burnett, 6 M. & W. +99. 
 
 (/) See Laugher v. Pointer, 5 K. & C. 556, judgment of LiTTLEDALE, J. 
 \q) Reedie v. London and North-Western Rail. Co., 4 Ex. 244 ; 20 L. J. 65 
 Ex. 
 
 (r) Milligan v. Wedge, 12 A. & E. 737.
 
 PRINCIPAL AND AGENT. 469 
 
 work. Through the negligence of the gasiitter, or his 
 servants, the gas exploded, and caused damage. It was 
 held that the builder was not liable to be sued- for it. {s) 
 Commissioners of navigation, who entered into a contract 
 with a person that he should do certain works, were held 
 not responsible for an injury arising from the imperfect 
 performance of part of those works, {t) Again, where 
 certain commissioners contracted with a contractor to 
 pave a district, and the contractor contracted with M. to 
 lay down a certain portion of the pavement, and M.'s 
 workmen left some stones at night, so as to constitute a 
 public nuisance, it was held that a person injured in fall- 
 incr over the stones could not sue the contractor, as the 
 
 o 
 
 injury was not caused by his workmen. {71) 
 
 An employer remains liable in the following cases : {x) 
 Case I.— The employer is liable when he personally 
 interferes wnth the contractor's workmen, {y) 
 
 Case 2.— The employer is liable when the act con- 
 tracted to be done is in itself unlawful ; {s) for, " if the 
 contractor does that which he is ordered to do, it is the 
 act of his employer. In those cases in which nothing was 
 ordered except that which the party giving the order 
 had a right to order, and the contract was '.o do what 
 was legal, . . . the employer has been [held] properly 
 not liable for what the contractor did negligently, the 
 relation of master and servant not existmg. But where 
 an employer employs a contractor to do that which 
 was unlawful, and an act done in consequence of [452] 
 such employment is the cause of the injury for 
 which an action is brought," («) the employer is liable; 
 
 is) Rapson v. Cubitt, 9 M. & W. 710. 
 
 (/) Allen V. Haywanl, 7 Q. B. >/)o ; 15 L. J. 90- Q- ''■ 
 
 iu) Overton v. Freeman, 11 C. B. ?>(>1 \ 21 L.J. 52. C. V. Sec. further, 
 Smith, M.i8ter and Servant. 2nfl ed.. 200, 201. 
 
 (x) Ellis V. .Sheffii-Id Gas Co., 23 L. j. 45. Q- B.. judiiment of Camphki.l, 
 C.J. 
 
 ( r) lUirgess v. Gray, 5 C. B. 57S ; 14 I- J- 184. C. P. 
 
 («) Peachy v. Row'land, 13 C. B. 182 ; 22 L. J. 81, C. P. ; KUis v. ShcfTield 
 Gas Co.. 2 E. & B. 767 : 23 I.. J. 42, Q. B. 
 
 (a) Ellis V. Sheffield Gas Co., 23 L. J. 43. Q- I'-. j"(lg'iicMt of Campbei.i, 
 C.J.
 
 470 PARTZ/^S TO ACTIONS. 
 
 for this is sinij^ly the case of one person employing anothei 
 to do an unlawtul act, and it is possible to distin<^uish it 
 from cases in which an employer has been held not liable 
 tor acts done by a contractor not in accordance with his 
 contract. (J)) A company, for examj)le, contracted with a 
 contractor to lay gas pipes for their m the streets of 
 Sheffield, without having any speci-f powers for that 
 purpose. His workmen left a pile of stones in the street, 
 over which the plaintiff fell, and was injured. The com- 
 pan)- was held liable to an action by the plaintiff, {c) 
 
 Case 3. — An employer is liable when the damage com- 
 plained of arises from the act itself which the contractor 
 is ordered to do. 
 
 A railwa}^ company was empowered to build a bridge 
 over a river, and employed a contractor, who built a 
 bridge which obstructed the navigation. The plaintiff's 
 vessels were thereby prevented from navigating the river. 
 The company were held liable in an action by the plain- 
 tiff. " When one comes to consider the exact distinction 
 between this case [and other cases], there is some little 
 difficulty in deciding it. . . . The real distinction is 
 that where an accident happens by reason of the negli- 
 gence of the servant of a contractor, so as to cause injury 
 to a third person, that being a matter entirely collateral 
 to that which the contractor had contracted to do, there 
 the liability turns on the relation of master and servant ; 
 but where the thing to be done is the thing that causes 
 the mischief, and the mischief can only be said to arise 
 without the direct authority of the person ordering, 
 
 because the thing has been imperfectly done, 
 [453] in other words, where the injury arises from the 
 
 imperfectly doing the thing ordered to be done, 
 there the part}' giving the order becomes responsible. 
 That is the distinction. The present defendants ordered 
 a bridge to be constructed across a navigable river. They 
 were authorized to take land for the purpose, and to throw 
 a bridge across the river, but the bridge was to be sc 
 
 {b) Ibid., judgment of Camphkll, C. J , and Erle, J. 
 (c) Ibid., 2 E. & 15. 767 , 23 L. J. 42, Q. H.
 
 PRIXCIPAL AND AGENT. 471 
 
 built as not to interfere with the navigation. If thev put 
 a bridge that did interfere with the navigation they would 
 be liable. . . . They ordered the contractor to build 
 the bridge, and when built, it turns out to be ill con- 
 structed. Does this appear at all different from the case 
 where a man puts up a structure, upon his land, which 
 structure, when put up, injures some one ? . . . The 
 man who orders the structure is liable, and it is no answer 
 to say, I ordered it to be put up in a way which should 
 cause no injury. In that case, as in this, the very thing 
 done, though imperfectly done, has been ordered to be 
 done, and the injury has arisen from the thing so imper- 
 fectly done." {d) " Where a thing is in itself a nuisajice, 
 and must be prejudicial, the party who emploj's another 
 to do it is responsible for all the consequences that may 
 have arisen. But when mischief arises, not from the thing 
 itself, but from the mode in which it is done, then the per- 
 son ordering it is not responsible unless the relation of 
 master and servant can be established," {e) which, as 
 between the employer and the contractor's servants, it can 
 not be. 
 
 Case 4. — The employer is liable when the contractor 
 is entrusted with the performance of a duty incumbent 
 upon the employer, and omits to perform it. 
 
 P. employed a coal merchant to put some coals through 
 a trap-door, which P. was bound not to keep open in a 
 way dangerous to the public. Through the negli- 
 gence of the coal merchant's servants it was left [454] 
 open, and the plaintiff T. fell through it, and was 
 injured. P. was held liable for the injury on the follow- 
 ing grounds :(/) The rule tliat an eniplovcr is not liable 
 for the acts of the contractor's servants is inapplicable to 
 "cases in which the contractor is entrusted with the i)er- 
 fcrmance of a duty incumbent upon his c'mj)Io\cr, and 
 neglects its fulfillment, whereby an injury is occasioned. 
 Now, in tiie i)rescnt case, the defendant employed the coal 
 
 V) Hole V. Siltinfjhourne Rail.. Co., 30 L. J. 86, Ex., ju(l;^mcnt of Wii.de, H. 
 <) Bntlcrv. Hunter, 31 I,. J. 214, Ex., esp. 217, judgment of Pollock, C B. 
 /) I'ick.-irfl V. Smith, 10 (' . 15., N. ,S., 470.
 
 A7-2 PARTIES TO ACTIONS. 
 
 merchant to open a trap in order to put in the coals and 
 he trusted him to guard it whilst (vien, and to close it when 
 the coals were all put in. The act of opening it was the 
 act of the employer, though done through the agency of 
 the coal merchant ; and the defendant, having hereby 
 caused danger, was bound to take reasonable means to 
 prevent mischief. The performance of this duty he 
 omitted, and the fact of his having entrusted it to a person 
 who also neglected it, furnishes no excuse either in good 
 sense or law." {g) 
 
 P. was empowered by statute to make a dram, and 
 emplo)'ed a contractor to make it. The ground was filled 
 up so negligently that it subsided and left a hole, into 
 which T. the plaintiff fell, and was injured. It was held 
 by the Queen's Bench, {h) that P. was not, and by the 
 Exchequer Chamber [i] that he was, liable for the injury ; 
 the ground of his liability being that " he was bound to 
 see that the opening should be properly closed, and that 
 the omission to perform his duty | was] not excused by the 
 omission of the agent whom the defendant had employed 
 
 to act for him." {k) 
 [455] 2;^^ Question. — Was the act complained of done 
 
 in the course of the servant's employment? A 
 master is not responsible for any act done by his servant 
 beyond the scope of his employment, or, as it is some- 
 times less happily termed, his authority. 
 
 " The master is liable, even though the servant, in the 
 performance of his duty, is guilty of a deviation or failure 
 to perform it in the most convenient manner. But if the 
 
 (,?•) Ibid., per Curiam. 
 
 (//) Gray v. Pullen, 32 L. J. 169, Q. B. 
 
 (/) Ibid., 5 13. & S. 970, 981 ; 34 L. J. 265. Q. B. 
 
 (A) Ibid., 34 L. J. 267, per Cuiu.\M. 
 
 Doubts have been expre.ssed as to the correctness of the decision in this case 
 (Wilson V. Merry, L. R. i, Sc. App. 341). The general principle, whether cor- 
 rectly applied in this instance or not, is, it is conceived, clear. A person who 
 employs a contractor is not the master of the latter's servants, and. therefore, 
 incurs no liability as master. But every one is responsible for anything done, 
 or omitted to be done, under his orders. Hence an employer who, through a 
 contractor, does a thing which is in itself unlawful, or omits to do a thing which 
 he is by law bound 'o do, is liable 'o an action by the person injured by his acl 
 or omi.ssion.
 
 PRINCIPAL AND AGENT. 473 
 
 servant, instead of doing that which he is employed to 
 do, does something which he is not employed to do at all, 
 the master can not be said to do it by his servant, and 
 therefore is not responsible for the negligence of his 
 ser\^ant in doing it." (/) " The distinction [as applied to 
 a particular case] is this : if a servant, driving a carriage, 
 in order to effect some purpose of his own, wantonly 
 strike the horses of another person, and produce the acci- 
 dent, the master will not be liable. But if, in order to 
 perform his master's orders, he strikes, but injudiciously, 
 and in order to extricate himself from a difficulty, that 
 will be negligent and careless conduct, for which his mas- 
 ter will be liable, being an act done in pursuance of the 
 servant's employment, {m) 
 
 It is often in practice difficult to decide whether the 
 act of a servant has or has not been done in the course 
 of his service, and whether, therefore, an employer is or 
 is not liable for it. The sort of difficulty which arises 
 may be seen from the following examples : 
 
 A coachman drove his master, and though ordered 
 not to drive fast, did so ; the master was held liable for 
 damage caused through the fast driving ; for the 
 coachman was driving for his master, though driv- [456] 
 ing badly, in) P. and Co., an omnibus compan}', 
 employed A. as the driver of an omnibus. A. had express 
 orders from his employers not to obstruct other omni- 
 buses, or annoy their drivers. A., however, drove his 
 omnibus purposely in front of the plaintiff's omnibus, so 
 as to obstruct it, and thereby caused an accident. Though 
 A. said that he had done it on purpose, and to serve the 
 plaintiff's driver as he had served A., yet it was hckl that 
 if the driver, being irritated, acted carelessly, wantonly, 
 or maliciously, but in the course of his cmploymoiit, and 
 in d(jing that which he believed to be for the interest of 
 his employers, then they were, in spite of their orders, 
 
 (/) Mitchell V. Craswelk-r, 13 C. l!. 237; 22 I,. J. i(X), C. P., per Mai.LE, J, 
 {m Croft V. Alison, 4 R. & Aid. 590. 
 
 («) Smith, .Master and Servant, and cd., 19I ; Slcath v. Wilson, q C. & P 
 612
 
 474 PARTIES TO ACTIONS. 
 
 responsible for his act ; {o) for, " if a master emplo3^s a 
 servant to drive and manage a carriage, the master is 
 answerable for anv misconduct of the servant in drivinor 
 or managing it, which can fairly be considered to have 
 rcsnltcd from the performance of the functions entrusted 
 to him, and especially if he was acting for his master's 
 benefit and not for anv purpose of furthering his own 
 interest, or for any motive of his own caprice or inclina- 
 tion." (/>) "A master," it is added by Blackburn, J., 
 " is responsible for the act of his servant, even if it be 
 willful, reckless, or improper, provided the act is the act 
 of the servant in the scope of his employment, and in 
 executing the matter for which he was engaged at the 
 time." {q) Where again, A., the conductor of an omni- 
 bus, removed T., a passenger, under circumstances which 
 justified him in removing him, but with such carelessness 
 that T. was injured. P., his employer, was held liable; {r) 
 " the true criterion being, not whether the act of his ser- 
 
 vant is a trespass, for in the greater number of 
 [457] actions against masters for acts of their servants, 
 
 for which the masters are held liable, the servants 
 are trespassers, but whether the act of the servant is will- 
 tul and malicious, in the latter case the master will not 
 be held liable." {s) So a master was held liable for dam- 
 age caused by the negligent driving of his cart in the city 
 by his servant, although it was proved that the cart 
 ought not, in carrying out his orders, to have been in the 
 city at all. (/) An attorney, again, has been held liable to 
 pay costs occasioned by his clerk simulating the seal of 
 the court upon a writ, {u) 
 
 On the other hand, in the following cases employers 
 have been held not liable, on the ground that the acts of 
 
 {0) Limpus V. London General Omnibus Co., 32 L. J. 34, Ex. (Ex. Ch.). 
 
 (/) Ibid., 39, judgment by Williams, J. 
 
 {q) Ibid., 41, judgment cf Blackisurn, J. 
 
 (>-) Seymour v. Greenwood, 6 H. & N. 359 ; 30 L. J. 189. Ex. ; 7 H. & N. 
 355 ; 30 L. J. 327, Ex. (Ex. Ch.). 
 
 (j) Seymour v. Greenwood, 30 L. J. 192, Ex., judgment of Mahtin, R. 
 
 (/) Joel V. Morrison, 6 C. & P. 501. See Whatman v. Pearson, L. R. 3. C. P 
 422. 
 
 («) Dunkley v. Ferris, 11 C. B. 457.
 
 PRINCIPAL AND AGENT. 475 
 
 their servants were beyond the scope of their employ, 
 ment. 
 
 P.'s servant had finished the business of the day, and 
 without P.'s leave or knowledge, di'ove P.'s horse and cart 
 to the railway station in order to take a fellow- workman 
 there, and an accident occurred on his way back. P. was 
 held not to be liable. (,r) For " the servant here did some- 
 thing contrary to, and inconsistent with, his master's busi- 
 ness [and] the journey to the station had no connection 
 with it whatever." {y) " The servant was acting, and 
 knew that he was acting, contrary to his trust, and to his 
 master's employment."(^) P., a wine merchant, sent A., his 
 carman, and also M., his clerk, with a cart, to deliver some 
 wine and to bring back some empty bottles. A., on their 
 return, was induced by M. not to drive home to P.'s offices, 
 but in quite another direction, on business of M.'s. While 
 A. was. thus driving, an accident happened through his 
 negligence. It was held that P. was not liable." {a) 
 " The true rule," said Cockburn, C. J., " is that [458] 
 the master is only responsible so long as the servant 
 can be said to be doing the act in the doing of which he is 
 guilty of negligence, in the course of his employment as 
 servant. I am very far from saying if the servant when 
 going on his master's business took a somewhat longer 
 road, that owing to this deviation he would cease to be in 
 the employment of the master so as to divest the latter 
 of all liability ; in such cases it is a question of degree 
 as to how far the deviation could be considered a separate 
 journey. Such a consideration is not applicable to the 
 present case, because here the carman started on an 
 entirely new and independent journey, which liad nothing 
 at all to do with his employment." (b) So a master was 
 held not to be liable when his servant, who was authorized 
 to distrain cattle doing damage on his niaster's land, dnwe 
 th-i plaintiff's horses, which were on the highway, on to 
 
 {x) Mitchell V. Cra.wcllcr, 13 C. B. 237 ; 22 L. J. loo. C. P. 
 0') Ibid., 22 L. J. 103, Q. 1!., jiulgim-nl of MaUI.k. J. 
 («) Ibid., 104, jud'^mcnl of CKKSwiiLI,, J. 
 la) Story v. Ashton. L. R. 4. Q. P.. Al^^- 
 [b) Ibid.. 479, per CoCKliURN, C. J.
 
 476 PARTIES TO ACTIONS. 
 
 his master's land, and there distrained them, for his act 
 was not within the scope of his authority, {c) 
 
 Employer not responsible for servant's mistake of law. — 
 It can not be assumed from the mere fact of a master 
 employing a servant, that he has empowered him to do 
 acts which the master himself is not competent to per- 
 form. Hence it has been held, that an employer is 
 responsible for the wrongful acts of his servant when they 
 arise from a mistake of fact, but is not responsible for 
 them when they arise from a mistake of law on the servant's 
 part. A., the servant of a railway company, arrested 
 T. under circumstances, which if his view- of the facts 
 
 had been correct would have justified the arrest : 
 [459] the company were held responsible for the assault. 
 
 {d) But where A., the servant of a railway company, 
 took a mistaken view of the law, and hence arrested T. 
 under circumstances which would under no view of the 
 facts have justified the arrest, the company were held not to 
 be liable, {e) " In this case an act was done by the station- 
 master completely out of the scope of his authority, which 
 there can be no possible ground for supposmg the railway 
 company authorized him to do. Having no power them- 
 selves, they can not give the station-master any power to 
 do the act; therefore the wrongful imprisonment is an 
 act for which the plaintiff, if he has a remedy at all, has it 
 against the station-master personally, but not against the 
 railway company." (/) " If the station-master had made 
 a mistake in committing an act which he was authorized 
 to do, . . . the company would be liable, because it 
 would be supposed to be done by their authority. Where 
 the station-master acts in a manner in which the company 
 themselves would not be authorized to act, and under a 
 
 (c) Lyons v. Martin, 8 A. & E. 512. As to a servant's authority to contract 
 arising from the course of his employment, see Walker v. Great Western Rail, 
 Co., L. R. 2, Ex. 228 ; Cox v. Midland Counties Rail. Co., 18 L. J. 65, Ex. ; 3 
 Exch. 268. For further examples of a master's liability for torts committed by 
 his servant, see Smith, Master and Servant, 2nd ed., 188-194. 
 
 (d') Goff V. Great Northern Rail. Co., 30 L. J. 148, Q. U- ; 3 E. & B. 672. 
 
 (<f) Poulton V. London and South-Western Rail. Co., L. R. 2, Q. B. 534; 36 
 L. J. 294. Q. B. 
 
 (/■) Ibid., L. R. 2, Q. B. 540, judgment of Blackburn, J.
 
 PRINCIPAL AND AGENT. 477 
 
 mistake or misapprehension of what the law is, . . . 
 the rule is very different, and . . . that is the dis- 
 tinction on which the whole matter turns." {g) ' 
 
 Exception i. — Where servant injured by fellow-servant. 
 
 A master is not in general liable to an action at the 
 suit of a servant, for an injury done to him by a fellow- 
 servant in the course of their common employment ; (//) 
 and a person who volunteers to assist a servant in 
 his work is in the same position as a servant in [460] 
 respect of the right of action against the master, (z ) 
 
 " It must be considered as conclusively settled, that 
 one fellow-servant can not recover for injuries sustained 
 in their common employment from the negligence of a 
 fellow-servant, unless such fellow-servant is shown to be 
 either an unfit or improper person to have been employed 
 for the purpose." [k) " The principle [on which the 
 exemption of the master rests] is that a servant who 
 engages for the performance of services for compensation 
 . . . does, as an implied part of the contract, take upon 
 himself as between himself and his master, the natural 
 risks and perils incident to the performance of such ser- 
 vices, the presumption of law being that the compensa- 
 tion was adjusted accordingly, or, in other words, that 
 these risks are considered in his wages ; and that where 
 the nature of the service is such that, as a natural incident 
 to the service, the person undertaking it must be exposed 
 to risk of injury from the negligence of other servants of 
 the same employer, this risk is one of the natural perils 
 which the servant by his contract takes upon himself as 
 
 {g) Ibid., juflgment of Mi:i,i,or,J. 
 
 (//) Feltliam v. England, L. R. 2, Q. 15. 33 ; 36 L. J. 14, Q. B. ; Morgan v 
 Vale of Nealh Rail. Co., 33 I,. J. 260, Q. U. ; L. R. i, Q. 15. 149 ; 35 L. J. 23 
 Q. B. (Ex. Ch.) ; Bullen, I'lcadings, 3rd cd., 362 ; and see Smith, Master and 
 Servant, 2nd ed., 134-153. 
 
 (0 Dtgg V. Midland Rail. Co., i H. & N. 773 ; 26 L. J. 171, Ex. ; Potter v 
 Faulkner, i B. & .S 800 ; 31 L. J. 30, Q. B. (Ex. Ch.). 
 
 {k) Fcl.ham v. England, L R. 2, Q. 15. 36, per Curiam. 
 
 ' Wharton on Agency and Agents, § 541.
 
 4/8 PARTIES TO ACTIONS. 
 
 between him and his master ;(/)... he does not 
 stand in the relation of a stranger, but is one whose rights 
 are regulated by contract express." 
 
 The terms a common employment, or a common ser- 
 vice, do not admit of a precise definition, (;«) and they are 
 used in a wide sense ; for there are " manv cases wdiere 
 the immediate object on which the one servant is employed 
 is very dissimilar from that in which the other is employed, 
 and yet the risk of injury from the negligence of the one 
 is so much a natural and necessarv consequence of the 
 employment which the other accepts that it must 
 [461] be included in the risks which are to be considered 
 :n his wages." {n) 
 
 The rule is not altered by the fact that the servant 
 guilty of negligence is a servant of superior authority 
 whose directions the other is bound to obey ; [o) and it 
 applies to cases where the immediate object on which 
 one servant is employed is very dissimilar from that on 
 which the other is employed. (/) On the other hand, the 
 service must be common, that is, each of the servants 
 must be employed by the same ^master ; {q) and the mas- 
 ter is not exempt from liability if the injury, even though 
 immediately caused by a fellow-servant, is fairly imputa- 
 ble to the conduct of the master himself, (r) ' 
 
 (t) Morgan v. Vale of Neath Rail. Co., 33 L. J. 264, Q. B., judgment of 
 Blackburn, J. 
 
 (/«) See Barton.shill Colliery Co. v. Maguire, 3 McQ. 300. 
 
 («) Morgan v. Vale of Neath Rail. Co., 33 L. J. 265, Q. B., judgment of 
 Blackburn, J. ; Tunney v. Midland Rail. Co., L. R. i, C. P. 291. 
 
 (p) Feltham v. England, L. R. 2, Q. B. 33. 
 
 {p) Morgan v. Vale of Neath Rail. Co., L. R. i, Q. B. 149. 
 
 {q) Warburton v. Great Western Rail. Co., L. R. 2, Ex. 30. 
 
 (r) Morgan v. Vale of Neath Rail. Co.. J3 L. J. 265, Q. B., judgment of 
 Bl.\ckburn, J. 
 
 I. An extension of the doctrine servants have been injured through 
 that superior servants represent the negligence of fellow-servants, 
 and stand in the place of the em- and largely increasing the number 
 ployer has taken place in the late of those by whose acts parties de- 
 American cases, circumscribing the fendant will be held liable to action, 
 exemption from liability that de- If the superior servant has com- 
 fendants have enjoyed when their mitted to him the virtual and sub-
 
 PRIX CI PAL AND AGENT. 
 
 479 
 
 Exception 2. — Where the master is compelled to employ a 
 particular person. 
 
 A master is not liable for the acts of servants when 
 he is compelled by statute to employ a particular per- 
 
 stantial control of the business and 
 the power to do all acts necessary 
 to its conduct, he is vice-pripcipal. 
 Willis V. Oregon Ry. & Nav. Co., 
 II Oreg. 257. Or if the master 
 delegates duties which the law im- 
 poses on him, the master is liable, 
 ■whatever be the rank of the ser- 
 vant. Copper. V. Louisville, &c., R. 
 Co., 2 N. E. Rep. 749. And such 
 a superior servant is any whose 
 orders the injured servant is bound 
 to obey, though in the same line of 
 employment. Shultz v. Chicago, 
 &c., R. Co., 4 N. W. Rep. 399; 
 Berea Stone Co. v. Kraft, 31 Ohio 
 St. 287 ; Cowles v. Richmond, &c., 
 Ry. Co., 84 N. C. 309; Galveston, 
 &c., Ry. Co. v. Delahunty, 53 Tex. 
 206 ; Chicago. &c., R. Co. v. Mo- 
 randa, 93 111. 302 ; Devany v. Vul- 
 can Iron Works, 4 Mo. App. 236 ; 
 Gormly v. Vulcan Iron Works, 61 
 Mo. 492; Railroad Co. v. Fort, 17 
 Wall. 557 ; Garraby v. Kansas 
 City, &:c., R. Co., 25 P'ed Rep. 258. 
 There are cases which hold that the 
 master is not responsible even for 
 the negligence of his foreman or 
 superintendent, but the current of 
 the above decisions is far stronger 
 and is founded in justice and 
 humanity. In the case of the 
 Chicago, &c., R. Co. v. Ross, 112 
 U. S. 377, the doctrine is authorita- 
 tively carried as far, perhaps, as it 
 will go, and Field, J., has strongly 
 fortified the rule with reason and 
 
 given it clear and full statement. 
 He says : " In Farwell v. Boston, 
 &c., R. Co., 4 Mete. 49, an engineer 
 employed by a railroad company 
 to run a train on its road was in- 
 jured by the negligence of a switch- 
 tender also in its employ, and 
 it was held that the company was 
 not liable. The court placed the 
 exemption of the company, not on 
 the ground of Murray v. South 
 Carolina R. Co , i McMul. 384, 
 that there was a joint undertaking 
 by the fellow-servants, but on the 
 ground that the contract of the 
 engineer implied that he would 
 take upon himself the risks attend- 
 ing its pe:formance; that those 
 included the injuries which might 
 befall him from the negligence 
 of fellow-servants in the same 
 employment and that the switch- 
 tender stood in that relation to 
 him. And the court added that 
 the exemption of the master was 
 supported by considerations of 
 policy. ' Where several persons,' 
 it said, 'are employed in the con- 
 duct of one common enterprise or 
 undertaking, and the safety of each 
 depends on the care and skill with 
 which each other shall perform his 
 appropriate duty, each is an ob- 
 server of the conduct of the otliers ; 
 can give notice of any misconduct, 
 incapacity or neglect of duty, and 
 leave the service if the common 
 employer will not t.ikc such pre-
 
 48o 
 
 PA K TIES TO AC TIONS. 
 
 son, (5) the o-ro..tKl of his exemption being, independently 
 of statutory provisions, that where one man is compelled 
 bv law to employ another, as where under various Mer- 
 
 (s) Smith, Master and Servant, 2nd ed.. 205, 206. 
 
 cautions and employ such agents 
 as the safety of the whole party 
 may require. By these means the 
 safety of each will be much more 
 efifectually secured than could be 
 done by a resort to the common 
 employer for indemnity in case of 
 loss by the negligence of each 
 other.' And to the argument, 
 which was strongly pressed, that 
 though the rule might apply where 
 two or more servants are employed 
 in the same department of duty, 
 where each one can exert some in- 
 fluence over the conduct of the 
 other, and thus, to some extent, 
 provide for his own security, yet 
 that it could not apply where two 
 or more are employed in different 
 departments of duty at a distance 
 from each other, and where one 
 can in no degree control or in- 
 fluence the conduct of another, it 
 answered that the objection was 
 founded upon a supposed distinc- 
 tion on which it would be extremely 
 difficult to establish a practical 
 rule. ' When the object to be ac- 
 complished,' it said, ' is one and 
 the same, when the employers are 
 the same and the several persons 
 employed derive their authority 
 and their compensation from the 
 same source, it would be extremely 
 difficult to distinguish what consti- 
 tutes one department and what a 
 distinct department of duty. It 
 would vary with the circumstances 
 of every case.' And it added, 
 
 'that the argument rests upon an 
 assumed principle of responsibility 
 which does not exist. The master 
 in the case supposed is not exempt 
 from liability because the servant 
 has better means of providing for 
 his safety when he is employed in 
 immediate connection with those 
 from whose negligence he might 
 suffer, but because the implied con- 
 tract of the master does not extend 
 to indemnify the servant against 
 the negligence of any one but him- 
 self, and he is not liable in tort as 
 for the negligence of his servant, 
 because the person suffering does 
 not stand towards him in the rela- 
 tion of a stranger but is one whose 
 rights are regulated by contract, 
 express or implied.' 4 Mete. 59, 
 60. The opinion in this case, which 
 was delivered by Chief Justice 
 Shaw, has exerted great influence 
 in controlling the course of de- 
 cisions in this country. In several 
 slates it has been followed, and the 
 English courts have cited it with 
 marked commendation. * * « 
 Later decisions in the English 
 courts extend the master's exemp- 
 tion from hability to cases where 
 the servant injured is working 
 under the direction of a foreman or 
 superintendent, the grade of service 
 of the latter not being deemed to 
 change the relation of the two as 
 fellow-servants. Thus, in Wilson 
 V. Merry, L. R., I H. L. Sc. 326, 
 decided by the House of Lords in
 
 PRINCIPAL AND AGENT. 
 
 481 
 
 chant Shipping Acts, the owner of a ship is compelled to 
 take a particular pilot, viz., the first one who offers him- 
 self, he is not liable for damage caused by the person 
 
 1868, on appeal from the Court of 
 Sessions of Scotland, the sub- 
 manager of a coal-pit, whose neg- 
 ligence in erecting a scaffold which 
 obstructed the circulation of air 
 underneath and led to an accumu- 
 lation of fire-damp that exploded 
 and injured a workman in the 
 mine, was held to be a fellow-ser- 
 vant with the injured party. And 
 the court laid down the rule that 
 the master was not liable to his 
 servant unless there was negligence 
 on the master's part in that which 
 he had contracted with the servant 
 to do, and that the master, if not 
 personally superintending the work, 
 was only bound to select proper 
 and competent persons to do so 
 and furnish them with adequate 
 materials and resources for the 
 work ; that when he had done this, 
 he had done all that he was re- 
 quired to do, and if the persons 
 thus selected were guilty of negli- 
 gence it was not his negligence, 
 and he was not responsible for the 
 consequences. In this case, as in 
 many others in the English courts, 
 the foreman, manager or superin- 
 tendent of the work by whose neg- 
 ligence the injury was committed, 
 was himself also a workman with 
 the other laborers, although exer- 
 cising a direction over the work. 
 The reasoning of that case has 
 been applied so as to include, as 
 contended here, employees of a 
 corporation in departments sepa- 
 rated from each other, and it must 
 31 
 
 be admitted that the terms ' com- 
 mon employment,' under late de- 
 cisions in England and the deci- 
 sions in this country following the 
 Massachusetts case, are of very 
 comprehensive import. It is diffi- 
 cult to limit them so as to say that 
 any persons employed by a rail- 
 way company whose labors may 
 facihtate the running of its trains, 
 are not fellow-servants, however 
 widely separated may be their 
 labors. See Holden v. Fitchburg 
 Railroad Co., 129 Mass. 268. 
 
 " But notwithstanding the num- 
 ber and weight of such decisions, 
 there are in this country many ad- 
 judications of courts of great learn- 
 ing restricting the exemption to 
 cases where the fellow-servants are 
 engaged in the same department 
 and act under the same immediate 
 direction, and holding that within 
 the reason and principle of the 
 doctrine only such servants can be 
 considered as engaged in the same 
 common employment. It is not, 
 hqwever, essential to the decision 
 of the present controversy to lay 
 down a rule which will determine, 
 in all cases, what is to be deemed 
 such an employment, even if it 
 were possible to do so. 
 
 "There is, in our judgment, 3 
 clear distinction to be made in iheii 
 relation to their common principal, 
 between servants of a corporation 
 exercising no supervision ovei 
 others engaged with them in the 
 same employment and agents o\
 
 482 
 
 PARTIRS TO ACTIONS. 
 
 employed, {t) When the selection of the person to be 
 employed is left to the master, he is liable, although 
 his choice may be limited by law to a particular 
 class. {71) 
 
 (/) See General Steam Nav. Co. v. British and Colonial Steam Nav. Co., L. 
 R. 4. Ex. 238 (E.\. Ch.). esp. judgment of Byles, J., 246. Compare Smith, 
 Master and Servant, 2nd ed., 205, 206; Lucey v. Ingram, 6 M. & W. 302: 
 Hammond v. Rogers, 7 Moo. P. C. 160; Conservators of the Thames v. Hall. 
 L. R. 3. C. P. 415. 
 
 («) Martin v. Temperley, 4 Q. B. 298 ; 12 L. J. 129, Q. B. 
 
 the corporation clothed with the 
 control and manaj^ement of a dis- 
 tinct department in which their 
 duty is entirely that of direction 
 and superintendence. A conductor, 
 having the entire control and man- 
 agement of a railway train, occu- 
 pies a different position from the 
 brakeman, the porters and other 
 subordinates employed. He is, in 
 fact, and should be treated as the 
 personal representative of the cor- 
 poration, for whose negligence it 
 is responsible to subordinate ser- 
 vants. This view of his relation 
 to the corporation seems to us a 
 reasonable and just one, and it will 
 insure more care in the selection of 
 such agents and thus give greater 
 security to the servants engaged 
 under him in an employment re- 
 quiring the utmost vigilance on 
 their part and prompt and unhesi- 
 tating obedience to his orders. 
 The rule which applies to such 
 agents of one railway corporation 
 must apply to all, and many cor- 
 porations operate every day sev- 
 eral trains over hundreds of miles 
 at great distances apart, each being 
 under the control and direction of 
 a conductor specially appointed for 
 its management. We know from 
 
 the manner in which railways are 
 operated that, subject to the gen- 
 eral rules and orders of the direc- 
 tors of the companies, the con- 
 ductor has entire control and 
 management of the train to which 
 he is assigned. He directs when 
 it shall start, at what speed it shall 
 run, at what stations it shall stop 
 and for what length of time, and 
 everything essential to its success- 
 ful movements, and all persons 
 employed on it are subject to his 
 orders. In no proper sense of the 
 terms is he a fellow-servant with 
 the firemen, the brakemen, the 
 porters and the engineer. The lat- 
 ter are fellow- servants in the run- 
 ning of the train under his direc- 
 tion ; as to them and the train, he 
 stands in the place of and repre- 
 sents the corporation. As observed 
 by Mr. Wharton, in his valuable 
 treatise on the Law of Negligence : 
 ' It has sometimes been said that a 
 corporation is obliged to act always 
 by servants, and that it is unjust to 
 impute to it personal negligence in 
 cases where it is impossible for it to 
 be negligent personally. But if 
 this be true, it would relieve cor- 
 porations from all liability to ser- 
 vants. The true view is that as
 
 PRIXCIPAL AND AGENT, 
 
 483 
 
 Exception 3. — Where the employer is a public officer [462] 
 under g^overnment. 
 
 Public officers under government {e.g., the postmaster- 
 general) are not responsible for torts committed by their 
 
 corporations can act only through 
 superintending officers, the negli- 
 gences of those officers, with re- 
 spect to other servants, are the 
 negligences of the corporations.' 
 I 232 a. The author, in a note, 
 refers to Brickner v. New York 
 Central Railroad Co., 2 Lans. 506, 
 decided in the Supreme Court of 
 New York and afterwards con- 
 firmed in the Court of Appeals, 49 
 N. Y. 572, and to Malone v. Hatha- 
 way, 64 N. Y. 5, decided in the 
 latter court, in which opinions are 
 expressed in conformity with his 
 views. These opinions are not, it 
 is true, authoritative for they do 
 not cover the precise points in 
 judgment, but were rather ex- 
 pressed to distinguish the questions 
 thus arising from those then before 
 the court. They indicate, however, 
 a disposition to engraft a limitation 
 upon the general doctrine as to the 
 master's exemption from liability to 
 his servants for the negligence of 
 their fellows, when a corporation is 
 the principal and acts through 
 superintending agents. Thus in 
 the fust case the court said: 'A 
 corporation cannot act personally. 
 It requires some person to superin- 
 tend structures, to purchase and 
 control the running of cars, to em- 
 ploy and discharge men and pro- 
 vide all needful appliances. This 
 can only be done by agents. When 
 the directors themselves personally 
 
 act as such agents, they are the rep- 
 resentatives of the corporations. 
 They are then the executive head 
 or master. Their acts are the acts 
 of the corporation. The duties 
 above described are the duties of 
 the corporation. When these direc- 
 tors appoint s-ome person other 
 than themselves to superintend and 
 perform all these executive duties 
 for them, then such appointee, 
 equally with themselves, represents 
 the corporation as master in all 
 those respects. And though, in the 
 performance of these executive 
 duties, he may be and is a servant 
 of the corporation, he is not in 
 those respects a co-servant, a co- 
 laborer, a co-employee, in the com- 
 mon acceptation of those terms, 
 any more than is a director who 
 exercises the same authority.' Page 
 516. And in Malone v. Hathaway, 
 in the Court of Appeals, Judge Al- 
 len says . ' Corporations necessarily 
 acting by and through agents, those 
 having the superintendence of 
 various departments, with dele- 
 gated authority to employ and dis- 
 charge laborers and employees, 
 provide materials and machinery 
 for the service of the corporation 
 and generally direct and control 
 under general powers and in- 
 structions from the directors, may 
 well be regarded as the representa- 
 tives of the corporation charged 
 with the performance of its duty
 
 484 
 
 PARTIES TO ACTIONS. 
 
 servants. (?') The cases in which public officers have been 
 held not liable for the torts of their subordinates were 
 decided upon the ground, that the government was the 
 
 (7-) Lane v. Cotton, i Salk. 17 : r Ld. Raym. 646 ; Whitfield v. Lord le Des- 
 penser, 2 Cowp. 754; Nicholson v. Mouncey, 15 East, 384. Nor is there any 
 remedy whatever against the Crown. See Canterbury's Case, i Phil. 306. 
 
 exercising the discretion ordinarily 
 exercised by principals, and, within 
 the limits of the delegated author- 
 ity, the acting principal. These 
 acts are in such case the acts of the 
 corporation, for which and for 
 whose neglect the corporation, 
 within adjudged cases, must re- 
 spond as well to the other servants 
 of the company as to strangers. 
 They are treated as the general 
 agents of the corporation in the 
 several departments committed to 
 their care.' 64 N. Y. 5, 12. See, 
 also, Corcoran v. Holbrook, 59 N. 
 
 Y. 517. 
 
 " In Little Miami Railroad Co. v. 
 Stevens, 20 Ohio, 415, the Supreme 
 Court of Ohio held that where a 
 railroad company placed the engi- 
 neer in its employ under the con- 
 trol of a conductor of its train, who 
 directed when the cars were to 
 start and when to stop, it was liable 
 for an injury received by him caused 
 by the negligence of the conductor. 
 There a collision between two trains 
 occurred in consequence of the 
 omission of the conductor to in- 
 form the engineer of a. change of 
 places in the passing of trains or- 
 dered by the company. Exemp- 
 tion from liability was claimed on 
 the ground that the engineer and 
 conductor were fellow-servants, and 
 that the engineer had, in conse- 
 quence, taken, by his contract of 
 
 service, the risk of the negligence 
 of the conductor, and also that pub- 
 lic policy forbade a recovery in 
 such cases. But the co'jrt rejected 
 both positions. To the latter it 
 very pertinently observed that it 
 was only when the servant had 
 himself been careful that any right 
 of action could accrue to him, and 
 that it was not likely that any 
 would be careless of their lives and 
 persons or property merely because 
 they might have a right of action to 
 recover for injuries received. ' If 
 men are influenced,' said the court 
 ' by such remote considerations lO 
 be careless of what they are likely 
 to be most careful about, it has 
 never come under our observation. 
 We think the policy is clearly on 
 the other side. It is a matter of 
 universal observation that in any 
 extensive business where many 
 persons are employed, the care and 
 prudence of the employer is the 
 surest guarantee against misman- 
 agement of any kind.' In Railway 
 Co. V. Keary, 3 Ohio St. 201, the 
 same court affirmed the doctrine 
 thus announced and decided that 
 when a brakeman in the employ of 
 a railroad company, on a train 
 under the control of a conductor 
 having exclusive command, was 
 injured by the carelessness of the 
 conductor, the company was re- 
 sponsible, holding that the con-
 
 PRINCIPAL AND AGENT. 
 
 485 
 
 principal and the defendant merely the servant, {x) and 
 that an action must be brought either against the principal 
 or against the immediate actors in the wrong: {y) and 
 
 {jc) The Mersey Docks Co. v. Gibbs, L. R., i H. L. lit, per Blackburn, J. 
 ( y) Story, Agency, s, 313. See, further, as to this, Subordinate Rule, /Co/. 
 
 ductor in such case was the sole 
 and immediate representative ot 
 the company upon which rested 
 the obligation to manage the train 
 wilh skill and care. In the course 
 of an elaborate opinion the court 
 said that from the very nature of 
 the contract of service between the 
 company and the employees, the 
 company was under obligation to 
 them to superintend and control 
 with skill and care the dangerous 
 force employed upon which their 
 safety so essentially depended. 
 ' For this purpose,' said the court, 
 ' the conductor is employed, and in 
 this he directly represents the com- 
 pany. They contract for and en- 
 gage his care and skill. They 
 commission him to exercise that 
 dominion over the operators of the 
 train which essentially pertains to 
 the prerogatives of the owner, and 
 in its exercise he stands in the place 
 of the owner and is in the discharge 
 of a duty which the owner, as a 
 man and a party to the contract of 
 service, owes to those placed under 
 him, and whose lives may depend 
 on his fidelity. His will alone con- 
 trols everything, and it is the will 
 of the owner that his intelligence 
 alone should be trusted for this 
 purpose. This service is not com- 
 mon to him, and the hands placed 
 under him. They have nothing to 
 do with it. His duties and their 
 duties are entirely separate and 
 
 distinct, although both necessary 
 to produce the result. It is his to 
 command and theirs to obey and 
 execute. No service is common 
 that does not admit a common par- 
 ticipation, and no servants are fel- 
 low-servants when one is placed in 
 control over the others.' 
 
 " In Louisville and Nashville R. 
 R. Co. V. Collins, 2 Duv. 114, the 
 subject was elaborately considered 
 by the Court of Appeals of Ken- 
 tucky, and it held that in all those 
 operations which require care, 
 vigilance and skill, and which are 
 performed through the instrumen- 
 tality of superintending agents, the 
 invisible corporation, though never 
 actually, is yet always construc- 
 tively present through its agents, 
 who represent it and whose acts, 
 within their representative spheres, 
 are its acts ; that the rule of En- 
 glish courts that the company is 
 not responsible to one of its ser- 
 vants for an injury inflicted from 
 the neglect of a fellow-servant, was 
 not adopted to its full extent in that 
 state, and was regarded there as 
 anomalous, inconsistent with prin- 
 ciple and public policy and unsup- 
 ported by any good and consistent 
 reason. In commenting upon this 
 decision, in his Treatise on the Law 
 of Railways, Redfield speaks with 
 emphatic approval of the declara- 
 tion that the corporation is to be 
 regarded as constructively present
 
 486 
 
 PARTIES TO ACTIONS. 
 
 can not be maintained aj^fainst an intermediate subordin- 
 ate under whom the actual wrong-doer is employed ; and 
 this holds although there is no remedy in the case of 
 torts committed by persons employed by government 
 against the ultimate principal, i. c, the Crown, {z) 
 
 It was at one time thought {a) that this exception 
 protected trustees or corporations for the gratuitous 
 
 (s) Canterbury's Case, i Phil. 306. 
 
 (,/; Metcalfe v. Hetheringtoii, 24 L. J. 314, Ex. ; 11 Ex. 257 ; 5 H. & N 
 719 ; Holiday v. St. Leonard'.s, Shoreditch, 30 L. J. 361. C. P. ; ii C. B., N. i; 
 
 I<)2 
 
 in all acts performed by its general management of it and control over 
 agents within the scope of their the persons employed upon it, 
 authority. ' The consequences of represents the coinpany, and there- 
 mistake or misapprehension upon fore that for injuries resulting from 
 this point,' says the author, 'have his negligent acts the company is 
 led many courts into conclusions responsible. If such a conductor 
 greatly at variance with the com- does not represent the company, 
 mon instincts of reason and hu- then the train is operated without 
 manity and have tended to inter- any representative of its owner, 
 pose an unwarrantable shield If now we apply these views of the 
 between the conduct of railway relation of the conductor of a rail- 
 employees and the just responsi- way train to the company and to 
 bility of the company. We trust the subordinates under him on the 
 that the reasonableness and justice train, the objections urged to the 
 of this construction will at no dis- charge of the court will be readily 
 tant day induce its universal adop- disposed of. Its language, in some 
 tion.' Vol. I., p. 554. There are sentences, may be open to verbal 
 decisions in the courts of other criticism, but its purport touching 
 states more or less in conformity the liability of the company is that 
 with those cited from Ohio and the conductor and engineer, though 
 Kentucky, rejecting or limiting to both employees, were not fellow- 
 a greater or less extent the master's servants in the sense in which that 
 exemption from liability to a ser- term is used in the decisions that 
 vant for the negligent conduct of the former was the representative 
 his fellows. We agree with them of the company, standing in its 
 in holding — and the present case place" and stead in the running of 
 requires no further decision — that the train, and that the latter was in 
 the conductor of a railway train, that particular his subordinate, and 
 who commands its movements, that for the former's negligence, by 
 diiectswhen it shall start, at what which the latter was injured, the 
 stations it shall stop, at what speed company was responsible.'' 
 it shall run, and has the general
 
 PRINCIPAL AND AGENT. 487 
 
 performance of public works, from liability to be sued 
 for the torts of their servants ; but it appears now settled, 
 that the principle on which a private person or company 
 is liable for damages occasioned by the neglect of ser- 
 vants applies to commissioners, trustees, corporations, or 
 others, entrusted with the performance of public works, 
 even though no gain is derived from the works by the com- 
 missioners, Slc, either in their individual or in their cor- 
 porate capacity, {b) 
 
 Rule 103.— A servant or other agent is [463] 
 liable to the person wronged for acts of mis- 
 feasance, or positive wrong, in the course of his employ- 
 ment, but not for acts of non-feasance or mere omis- 
 sion, (c) 
 
 All persons concerned in a wrong are liable to be 
 charged as principals. " The warrant of no man, not 
 even the king himself, can excuse the doing of an illegal 
 act, for although the commanders are trespassers so are 
 also the persons who did the fact;" {d) and " no authority 
 whatsoever from a superior can furnish to any party a 
 just defense for his own positive torts or trespasses, for no 
 man can authorize another to do a positive wrong." {e) 
 Hence, a ser-vant who commits a trespass, or who injures 
 the plaintiff by negligent driving, or by a fraud, (/) is 
 liable to be sued by the person injured, and the agent who 
 actually does the wrong may be liable, though his 
 employer {e. g., as being a public officer under govern- 
 ment) can not be sued. If goods are delivered by T. to 
 P. to keep them, and P. in his turn delivers them to A. to 
 keep ^'or the use of T., and A. wastes or destroys them, 
 T. may sue A., although the bailment was not made to 
 
 (b) Mersey Docks Co. v. Gibbs, L. R. I. H. L. 93 ; 35 L- J- 225. Ex. (II. L.). 
 
 (c) See Smith. Master and Servant, 2ncl cd., aji, and following Story, 
 Agency, s. 308-312. 
 
 {d) SanJ.s V. Child. 3 Lev. 352 ; but see Huron v. Dc-nman. 2 hx. 1O7. 
 
 (e) Story. Agency, s. 309. 
 
 (/) Smith, Master and Servant. 2nd ed.. 245, 246. Compare Story 
 
 Agency, s. 310,
 
 488 PARTIES TO ACTIONS. 
 
 A. by T., for A. is a wrono-docr. (<,>■) If, again, an auc- 
 tioneer is employed bv a sheriff to sell at an auction goods 
 which the sheriff had taken in execution, which were not 
 the property of the execution debtor, the auctioneer, if 
 he sells them, is equally liable to an action with the 
 
 sheriff. (/) " The point [in such a case] is whether 
 [464] [the servant] is not a tort-feasor; for if he be so, no 
 
 authority he can derive from his master can excuse 
 him from being liable. . . . The act of selling the 
 goods is the conversion, and whether to the use of him- 
 self or another it makes no difference." {k) Servants, 
 therefore, have often been held liable in trover for the 
 conversion of goods, though the act was done for their 
 employer's benefit. (/) P. purchased goods under cir- 
 cumstances which made him guilty of a conversion. The 
 goods were delivered to A., P.'s clerk, who sent them to 
 P., who was in America. A. was held liable for an act of 
 conversion, (in) " A person is guilty of conversion who 
 intermeddles with any property and disposes of it, and it 
 is no answer that he acted under authority from another, 
 who had himself no authority to dispose of it. . . And 
 the court is governed by the principle of law, and not by 
 the hardship of any particular case, for what can be more 
 hard than the common case in trespass where a servant 
 has done some act in assertion of his master's right, that 
 he shall be liable, not only jointly with his master, but if 
 his master can not satisfy it, for every penny of the whole 
 damage ; and his person also shall be liable for it ; and, 
 what is still more, that he shall not recover contribution? " 
 But the same act which would amount to conversion if 
 committed by the master need not necessarily bear this 
 character when done by the servant. Where, for example, 
 the latter refuses to deliver up goods received from his 
 master without his master's orders. Such refusal has 
 
 (g) Stor)', Agency, s. 311. 
 (i) Farebrother v. Ansley, i Camp. 343. 
 (k) Perkins v. Smith, I Wilson, 328, per Lke, C. J. 
 (/) Ibid. 
 
 (m) Stephens v. Elvvall, 4 M. & S. 259, 261, judgment of Ellenborough 
 C.J.
 
 PRINCIPAL AND AGENT. 489 
 
 been held not to amount to a conversion by the servant. 
 The distinction is that if the servant refuse to give up the 
 goods to the rightful owner, and rely on his master's title, 
 he is liable in trover ; but if he merely gives a qualified 
 refusal and refers to his master, he is not liable. (;/) 
 
 A servant or agent is not liable to third persons [465] 
 for the mere non- performance of his duties as such 
 agent. " Non-feasances or mere neglects in the perform- 
 ance of duty . . . must arise from some express or 
 implied obligation between particular parties standing in 
 privity of law or contract with each other, and no man is 
 bound to answer for such violations of duty or obligation 
 except to those to whom he has become directly bound 
 or amenable for his conduct." {p) The distinction, how- 
 ever, between acts which are mere neglects of an agent's 
 duty to his principal and acts which are wrongs towards 
 third parties is a very fine one. If, for example, the ser- 
 vant of a carrier negligently loses a parcel of goods 
 entrusted to him, the carrier, and not the servant, is 
 responsible to the bailor or owner of the goods. (/) But 
 if the servant were willfully to destroy them he would be 
 liable to the owner, {q) 
 
 In determining the liability of a servant towards a 
 third party the question to be answered is, it is conceived, 
 has the act of the servant merely violated a duty he owes 
 to his master, or is it also an infringement of the rights of 
 the third party ? In the former case he can not, in the 
 latter he can, be sued by such party, {s) 
 
 \ti) Lee v. Robinson, 25 L. J- 249. C. P. ; Lee v. Biyes iS C. B. 599, 607. 
 Compare Alexander v. Southey, 5 W. & Aid. 247, with Wil-on v. Anderton, i 
 H. \ .\d. 450 ; Smitli, Master and Servant, 2nd ed., 244-246. 
 
 (o) Story. A:;encv, s. 309. This is in reality an application of the principle 
 that no one can sue for the breach of a con'.ract except tlie ])arty with whom it 
 is made. See Rule 10. 
 
 (/») Lane v. Cotton, 12 Mod. 488. 
 
 {q) Compare Story, Agency, ss. 310. 31 1. 
 
 (j) It has been suggested that a servant is not liable for an injurv to his 
 fellow-servant in the course of theircommon employment (Southcote v. Stanley, 
 I H. & N. 247 , 25 L. J. 339, Ex. See 25 L. J. 340, Kx., judgment of F'CL- 
 LOCK, C. B. Comp,irc AH.ro v. J.af|uilh, 4 Gray, Rep. (Amer.) 99 ; Farwcll v. 
 Boston and Worcester Rail. Co., 4 Melc. (Amer.) 49). But the correctness of 
 this view is most floubtful.
 
 490 PARTIES TO ACTIONS. 
 
 Can the principal and agent he jointly sued? — A master 
 and servant can certainly be sued jointly when they are 
 liable in the character of joint wrong-doers, e. g.^ 
 [466] where the servant trespasses by order of the mas- 
 ter, (-r) The preponderance of authority is further 
 in favor of their hability to a joint action where the mas- 
 ter is responsible, not as a joint wrong-doer, but because 
 bis servant committed the wrong complained of in the 
 course of his employment, {y) Thus a i-ailway company 
 and their manager have been jointly sued for malicious 
 prosecution, {z) So a clerk of commissioners, a contractor,. 
 and the contractor's servant, have been sued jointly for 
 damage caused by opening a ditch across a highway, {a) 
 Still it has been doubted on high authority whether a 
 master and servant can be sued jointly, where the master 
 is liable only on account of his position as master, {b) 
 
 SUBORDINATE RULE. 
 
 An action for tort may be brought either against the princi- 
 pal or against the immediate actor in the wrong, but 
 can not be brought against an intermediate agent, (c) 
 
 If P. employs X. to act as manager of his business, 
 and X. hires A. who commits a wrong against T., T. can, 
 as a general rule, either sue P. on the ground of the 
 wrong being committed by A. in the ccnirse of his employ- 
 ment, or sue A. as being the actual wrong-doer. But he 
 can not sue X., who is neither A.'s principal nor himself 
 the doer of the wrong. 
 
 " If an action were brought by the owner of goods 
 
 (x) See a?tte. 
 
 ( y ) See anig. 
 
 (2) Stevens v. Midland Rail. Co., 23 L. J. 32S, Ex. ; 10 Ex. 352. 
 
 (a) Hall V. Smith, 2 Bing. 156. 
 
 {d) Compare Michael v. Alestree, 2 Lev. 172 ; Whitamore v. Waterhouse, 
 4 C. & P. 383 ; Parsons v. Winchell, 5 Cush. (Amer.) 592, where all the ca^es 
 are reviewed. 
 
 (c) Story, Agency, s. 313 ; Mersey Docks Co. v. Gibbs, L. R. i, H. L. 93; 
 35 L. J. 225, Ex. (li. L.).
 
 PRINCIPAL AND AGENT. 491 
 
 against the manager of the goods traffic of a railway com- 
 pany, for some injuries sustained on the line, it would fail, 
 unless it could be shown that the damage were done by 
 his orders or directions; for the action must be 
 brought either against the principal or against the [467] 
 immediate actors in the wrong. . . . The princi- 
 ple is the same as that on which the surveyor of the high- 
 ways is not responsible to a person sustaining injury, 
 from the parish ways being out of repair, though no 
 action can be brought against his principals, the inhabi- 
 tants of the parish." {d) 
 
 The masters of ships, however, although servants of 
 the owners, are responsible for the negligence of subor- 
 dinate officers, and others employed by them, {e) 
 
 (d) Mersey Docks Co. v. Gibbs, L. R., I H. L. in per BLACKBURN, J 
 
 f Vonnor V, Davis. 7 H. & N. r6o ! 3I L. J. 25O, Ex. 
 
 (a ) Mersey uocks i^o. v. vjidds, j_. 
 See Young v. Davis, 7 H. & N. 760 ; 31 
 (e) Story, Agency, s. 315.
 
 49^5 PARTIES TO ACTIONS. 
 
 CHAPTER XXVII. 
 
 PARTNERS. 
 
 Rule 104. — One, or any, or all of the partners in 
 a firm, or members of an unincorporated company, 
 may be sued jointly for a wrong committed by the 
 firm or company. 
 
 A firm is nothing more than the persons who at any 
 given moment compose it. {a) Hence, for any wrong 
 which can be considered the act of the firm, the members 
 X., Y., and Z., are collectively and individually {b) liable 
 to be sued. An act may be the act of the firm, either 
 because it is done by one of the partners within the 
 scope of his partnership business, that is, as agent of 
 the firm ; or because it is done by a person {e. g., a ser- 
 vant), in the employment of the firm. The rule that all 
 or any of the partners may be sued holds good even 
 when the tort complained of is in no other sense the act 
 of the firm than as being the act of a servant of the firm 
 in the course of his employment. If, for example, M., 
 the servants of the partners X., Y., and Z., in the course 
 of his service injures A. through his negligence or fraud. 
 {c) A. can sue X. alone, and X. can not object to the non- 
 joinder of Y. and Z. {d) 
 [468] The principle that there is no contribution between 
 wrong-doers {e) does not apply to a person made a 
 
 {a) See as to nature of partnerships and unincorporated companies, ante. 
 
 \b) Rule 98. 
 
 {c) Rapp V. Latham, 2 B. & A. 795 ; Lovell v. Hicks, 2 Y. & C. (Ex.) 46, 
 481 ; I Lindley, Partnership, 2nd ed., 319, 320. See ante. 
 
 {d) Mitchell v. Tarbutt, 5 T. R. 649 ; Ansell v. Waterhouse, 6 M & S. 
 385 ; I Lindley. Partnership, 2nd ed„ 488, 489. 
 
 le) See ante.
 
 PARTNERS. 
 
 493 
 
 wrong-doer by inference of law only. X. therefore, in the 
 supposed case, could recover from Y. and Z. their 
 share of the damages which he was compelled to pay 
 A.(/) 
 
 Exception. — Where partners sued as co-owners of land, {g 
 
 (/) Merryweather v. Nixan, 2 Smith, L. C, 6th ed., 481, 486; Pearson v. 
 Skelton, I M. & W. 504 ; Adamson v. Jarvis, 4 Bing. 66. 
 {g) I Lindley, Partnership, 2nd ed., 489.
 
 494 PARTIES TO ACTIONS. 
 
 CHAPTER XXVIII. 
 
 CORPORATIONS, {o) 
 
 Rule 105. — A corporation or incorporated body 
 
 can be sued for torts, (b) 
 
 Corporations are liable to be sued for any wrong which 
 they can commit. 
 
 " There are, of course, some offenses for which a cor- 
 poration can not be sued; for instance, murder, fo.* a 
 corporation can not commit murder ; nor can they be sued 
 for immoral crimes, such as adultery, nor for corruption ; 
 though the members individually might be sued." {c) 
 These offenses are, it is true, rather crimes than torts ; 
 but there are some wrongs, e.g., seduction, of which a cor- 
 poration must be manifestly incapable. It was at one 
 time thought {d) but, it is conceived, erroneously {e) that 
 corporations could not commit torts, such, e. g., as 
 malicious prosecution, or libel, involving the existence of 
 
 malice. 
 [471] A corporation or company, being an abstract 
 
 thing, must always act through agents, (/) and ar 
 
 {a) A corporation, or incorporated company, can sue for wrongs to itself bv 
 its corporate name in the same manner as other persons. There is nothing to 
 prevent a corpora'ion from suing one of its own members. (Metropolitan 
 Saloon Omnilnis Co. v. Hawkins, 28 L. J. 201, Ex. ; 4 H. & N. 87.) 
 
 (l>) As to nature of corporations, see ante. 
 
 (c) Metrojiolilan Saloon Omnibus Co. v. Hawkins, 28 L.J. 202, Ex.; per 
 Pollock, C. B. 
 
 (d) Stevens v. Midland Rail. Co., 10 Ex. 252 ; 23 L. J. 328, Ex. ; Bullen. 
 Pleadings, 3rd ed., 300. 
 
 (e) Green v. London General Omnibus Co., 7 C. B., N. S., 290; 29 L. J. 13, 
 C. P. ; Limpus v. London General Omnilnis Co., i H. & C. 526; 32 L. J. 34, 
 Ex. (Ex. Ch.) ; i Lindlcy, Partnership, 2nd ed., 306. 
 
 (/) Bullen, Pleadings, 3rd ed., 300 ; National Exchange Co. of Glasgow v. 
 Drew, 2 McQ. 103, esp. judgment of Lord Ckanworth, p. 123-127 ; and see 
 Ferguson v. Wil.'-on, L. R. 2, Ch. App. 89.
 
 CORPORA TIONS. 495 
 
 liable for ihc negligence of their servants committed by 
 them in tlie course of their employment, (^) and it has 
 therefore been held that the Bank of England was liable 
 for a wrongful detention of goods by the bank's servants. 
 (//) It is, however, essential, in an action against a corpo- 
 ration, as in one against any other principal, to show that 
 the tort sued for was either authorized or ratified by tne 
 corporation, or within the scope of the servant's employ- 
 ment, (z ) 
 
 Can a corporatio7i be sued for fraud ? — There is good 
 authority for the statement that " an action for fraud can 
 not be maintained against a corporation." (_/") 
 
 " The true principle is, that these corporate bodies [viz., 
 companies], through whose agents so large a portion of 
 the business of the country is now carried on, may be 
 made responsible for the frauds of those agents to the 
 extent to which the companies have profited from these 
 frauds ; but that they can not be sued as wrong-doers by 
 imputing to them the misconduct of those whom they have 
 employed. A person defrauded by directors, if the sub- 
 sequent acts and dealings of the parties have been such as 
 to leave him no remedy but an action for the fraud, must 
 seek his remedy against the directors personally." {IS) 
 " The principle (of making a company responsible for the 
 misrepresentations of the directors) can not be carried to 
 the wild length that I have heard suggested ; namely, 
 that you can bring an action against the company 
 upon the ground of deceit, because the directors [472] 
 have done an act which might render them liable 
 to such an action. That I take not to be the law of 
 the land, nor do I believe that it would be the law of the 
 land if the directors were the agents of some person not 
 
 ( g) Mersey Docks Co. v. Gibbs L. R. I, II. I,. 93; 35 L.J. 225, E.\. 
 
 (II. L.;. 
 
 (/;) Varborough v. Bank of England, 16 East, 6. 
 
 (1) .Sliles V. Carclifi" Sle.im Boat Co., 33 L. J. 310 Q. l!. ; \ Lindley, Tart- 
 ncrship, 2nd cd., 305, 306. 
 
 (j) Bullcn, I'lcading.s. 3rd ed., 300; Western Bank of Scotland v. Addie, 
 L. k. I, Sc App. 145. 
 
 Kk) Western Bank of Scotland v. Addic, L. R. i, .Sc. .\pp. 167, jud^;ment 
 of Lord Cranwoktu.
 
 496 PARTIES TO ACTIONS. 
 
 a company. The fraud must be a fraud, that is, either 
 pcrsimal on tlie part of the individual making it, or some 
 fraud which another person has impliedly authorized him 
 to be guilty of (/) " The distinction to be drawn from the 
 authorities, which is sanctioned by sound principle, 
 appears to be this. Wiion a j^erson has been drawn into 
 a contract to purchase shares belonging to a company by 
 fraudulent misrepresentations of the directors, and the 
 directors, in the name of the company, seek to enforce 
 that contract, or the person who has been deceived insti- 
 tutes a suit against the company to rescind the contract 
 on the ground of fraud, the misrepresentations are imputa- 
 ble to the company, and the purchaser can not be held to 
 nis contract, because a company can not retain any bene- 
 fit which they have obtained through the fraud of theii 
 agents. But if the person who has been induced to pur- 
 chase shares by the fraud of the directors, instead -of seek- 
 ing to set aside the contract, prefers to bring an action 
 for damages for the deceit, such an action can not be main- 
 tained against the company, but only against the directors 
 personally." {in) 
 
 There is, however, nearly equally good authority for 
 the statement that a corporate body can be sued for the 
 fraud of their agent committed in the course of his employ- 
 ment. The Court of Exchequer Chamber have recently 
 held a joint-stock banking company directly liable for the 
 fraud of their manager, {n) and have thus laid down the law. 
 " It is said, [on behalf of the defendant 1 if it be established 
 
 that the bank are answerable for this fraud, it is the 
 [473] fraud of the manager, and ought not to have been 
 
 described as the fraud of the bank. I need not go 
 into the question whether it be necessary to resort to the 
 count in case for fraud, or whether, under the circumstan- 
 ces, money having been actually procured for and paid 
 into the bank which ought to have got into the plaintiff's 
 
 (/) New Brunswick Co. v. Conybeare, 9 H. L. C. 711, 739, per Lord Cran- 
 WORTH. 
 
 (:») Western Bank of Scotland v. Addie, L. R. r, Sc. App. 157, 158, per 
 Chklmsfokd, Cli. 
 
 («) Barwick v. English Joint Stock Bank, L. R. 2, Ex. 259 (Fx. Ch.).
 
 CORPORA TIONS. 497 
 
 nands, the count for money had and received is not appli- 
 cable to the case. I do not discuss that question, because 
 at common law no such difficulty as here suggested is 
 recognized. If a man is answerable for the wrong of 
 another, whether it be fraud or other wrong, it may be 
 described in pleading as the wrong of the person who is 
 sought to be made answerable in the action." {0) 
 
 The law on the point under consideration must be 
 considered as open to doubt, but may probably (it is sub- 
 mitted), be still summed up as follows : 
 
 " So long as it is law that a principal may be bound 
 by the unauthorized act of his agent, {p) so long it will 
 be impossible to deny that companies may be affected by 
 the false and fraudulent representations of their directors, 
 although they have no authority to promulgate false- 
 hoods. The falsehood may be an excess of authority, 
 but it does not therefore follow that it is imputable only 
 to those who utter it : {q) and it is submitted that the 
 question whether a false and fraudulent statement can 
 be regarded as the statement of a company, must be 
 answered in the affirmative, if the statement in question 
 is made by an agent of the company, if it relates to a 
 matter as to which he is its agent, and if it is made in the 
 course, and as part, of the business which he is appointed 
 to transact for the company." {q) (r) 
 
 {0) Barwick v. English Joint Stock Bank, L. R. 2, Ex. 266, judgment of the 
 Exchequer Chamber delivered by WlLLES, J. 
 
 (p) Foster v. Green, 7 H. & N. 881 ; 31 L. J. 158, Ex. 
 
 {q) Burnes v. Pennell, 2 H. L. C. 497 ; Deposit and General Life Assurance 
 Co. V. Ayscough, 6 E. & B. 761 ; Nicol's Case, 3 De G. & J. 387 ; Blake's Case, 
 34 Beav. 639. 
 
 (r) I Lindlcy, Partnership, 2nd ed., 326. See, further, Cox, Joint Stock 
 Companies, 7th ed., 38, 39. 
 82
 
 498 PARTIES TO ACTIONS. 
 
 CHAPTER XXIX. 
 
 INFANTS, {a) 
 
 Rule io6. — An infant may be sued for torts com- 
 ? tted by him. (b) 
 
 Infancy is no defence to an action for tort, e. g., for an 
 assault, a trespass, &c. 
 
 Torts founded on contract, (c) — An infant can not be 
 made liable for what is really a breach of contract by 
 the fact of the action being brought in the form of an 
 action for tort. Whether, therefore, an infant is or is not 
 liable in an action in form ex delicto, depends in each 
 case, not upon the form, but upon the true nature of the 
 action. He is liable, if it be in reality an action for tort ; 
 he is not liable, if it be in substance an action for breach 
 of contract. Thus an infant can not be charged on the 
 custom of the realm as a common innkeeper; he can not 
 be sued for breach of duty as a carrier ; nor, it is said, 
 can he be made liable for the conversion of goods, if the 
 cause of action is grounded on a matter of contract with 
 the infant, and constitutes a breach of contract as well as 
 a tort, [d) On the same principle, where an infant hired 
 a mare, and injured it by immoderate riding, it was held 
 
 that the plea of infancy was an answer to the 
 [475] action, the action being founded on a contract, (e) 
 
 But where an infant hired a horse, on the terms 
 
 (■i) An infant has exactly the same rights of suing as are possessed by persons 
 not infants. He sues in the name of his next friend ; but this is a mere matter 
 of form. 
 
 (6) And, of course, therefore, a person who has attained his majority may be 
 sued for torts committed during infancy. 
 
 (<•) See anfe. 
 
 {d) Manby v. Scott, i Lev. 4 ; 2 Smith, L. C, 6th ed., 396. 
 
 (e) Jennings v. Cundall. 8 T. R. 335.
 
 INFANTS. 499 
 
 that It was to be ridden on the road, and not over fences 
 in the fields, and having got possession of the horse, lent 
 it to a friend, who took it off the high road, and in the 
 endeavor to jump it over a hedge killed it, the infant was 
 held to have committed a wrong, and to be responsible in 
 damages for the value of the horse. (/) 
 
 Exception. — Where fraud closely connected with a contract. 
 
 An infant, can not be made liable for a distinct fraud, 
 if it to be closely connected with a contract. Thus, an 
 action at law will not lie against a person for fraadulently 
 representing himself of full age, and thereby inducing the 
 plaintiff to contract with him. {g) 
 
 (/) Bernard v. Haggis, 4 C. B., N. S. 45 : 32 L. J. 189, C. P. 
 
 ig) Price V. Hewitt, 8 Ex. 146; Liverpool Adelphi Loan Association v. 
 Fairhurst, 9 Ex. 422 ; 23 L. J. 163, Ex. ; Bartlett v. Wells, i B. & S. 836 ; 31 
 L.J. 57.Q B.
 
 50O PARTIES TO ACTIONS. 
 
 CHAPTER XXX. 
 
 HUSBAND AND WIFE. 
 
 Rule 107. {a) — A husband and wife must be 
 sued jointly for all torts committed by the wife either 
 before marriage or during coverture. 
 
 A woman is liable for all torts committed by her as 
 well before as after her marriage. If, that is to say, Y. 
 assaults A., trespasses on his land, or defrauds him, she 
 does not get rid of her liability by marriage with X. ; nor 
 is she free from responsibility for torts committed during 
 coverture, whether they are committed by herself alone, 
 or when acting together {b) with X. Though Y. during 
 coverture can not be sued alone, and must be sued, if at 
 all, together with X., yet when X. and Y. commit a joint 
 tort, the plaintiff has the choice of either suing X. and Y. 
 jointly, (which is in effect to bring an action against Y.) 
 or of suing X. singly. But for what is merely the tort 
 of the wife, whether committed before or after marriage, 
 an action can not be brought against X. alone. 
 
 Torts fonnded oil contract. — A married woman cannot 
 be made responsible for breaches of contracts made with 
 her during coverture, by being sued for such breaches in 
 the form of an action for tort, {c) 
 
 Exception. — Where fraud closely connected with a contract. 
 
 A woman is not liable either during coverture^ 
 
 [477] or after her husband's death, to be sued for any 
 
 fraud committed during coverture, which is so 
 
 (a) For the rule that a married woman cannot be sued alone during cover 
 ture, and the exceptions to it, see ante. 
 (6) Catterall v. Kenyon, 3 Q. P.. 310. 
 (<•) As to a married woman's incapacity of cnnliacting, sec ante.
 
 HUSBAND AND WIFE. 501 
 
 closely connected with a contract as to form part of the 
 same transaction. Thus, the question was raised, {d) 
 whether an action would lie against a husband and wife 
 for a false and fraudulent representation by the wife to 
 the plaintiffs, that she was unmarried at the time of her 
 signing a promissory note as a surety to them for a third 
 person, whereby they were induced to advance money to 
 that person, and it was held that the action was not main- 
 tainable. " A feme covert is unquestionably incapable of 
 binding herself by a contract ; it is altogether void, and 
 no action will lie against her husband. But she is 
 undoubtedly responsible for all torts committed by her 
 during coverture, and the husband must be joined as a 
 defendant. They are liable, therefore, for frauds com- 
 mitted by her on an)^ person as for any other personal 
 wrong. But when the fraud is directl}^ connected with 
 the contract with the wife, and is the means of effecting it, 
 and parcel of the same transaction, the wife can not be 
 responsible, or the husband be sued for it together with 
 his wife. If this were allowed, it is obvious that the wife 
 would lose the protection which the law gives her against 
 contracts made by her during coverture, for there is not 
 a contract of an}' kind which a feme covert could make 
 whilst she knew her husband to be alive, that could not 
 be treated as a fraud ; for cver}^ such contract would 
 involve in itself a fraudulent representation of her capacity 
 to contract." (r) Where, again, a married woman fraudu- 
 lently represented to the plaintiff, that a bill was accepted 
 bv her husband, and thereby induced the plaintiff to dis- 
 count it, the Court of Common Pleas were divided in 
 opinion on the question, whether an action could be 
 maintiiined against the wife and husband. (/) 
 
 Effect of dcatli.~C>x\ the death of the husband [478 J 
 the wife remains liable (subject to the exception 
 already mentioned) for all torts committed by her before 
 
 (d) Fairhurst v. Liverpool Loan Associ.ition, () Ex. 422 ; 23 L. J. 163, Ex. 
 
 (<■) Ibid., 23 L. J. 164, i()5, Ex. jiKlgmcnt of roi.r.ocK. C. U. 
 
 </) Wright V. Leonard, 11 C. H., N. S. 258 ; 30 L. J. 3<>5. C. P. ; Johnston 
 r. Pye. 1 Lev. i6g ; S. C, i Keb. 913 ; Cooper v. Wiih.in, i Lev. 247 ; Can- 
 nam v. Farmer, 3 Exch. 608.
 
 502 FAKlJhS TO ACTIONS. 
 
 or after marriage. " As a general rule a married woman 
 is answerable for her wrongful acts, including frauds, and 
 she may be sued in respect of such acts jointly with her 
 husband, or scj^arately if she survives him. The liability 
 is hers, though living with her husband ; it must be 
 enforced in an action against her and him, which to charge 
 him must be brought to a conclusion during their joint 
 lives." {£) 
 
 On the death of the wife the liability to be sued for 
 her torts survives, if at all, against her representative ; 
 her husband is not liable for any tort committed by 
 her. [Ji) 
 
 Effect of divorce. — A divorce leaves the wife liable, and 
 frees the husband from responsibility for all torts com- 
 mitted by her. " I think a husband, after he has been 
 divorced from his wife, is not liable for a tort committed 
 by her during the coverture. . . . During the cover- 
 ture the wife has in law no separate existence, and she 
 can neither sue nor be sued in any court. For any wrong 
 committed by her she is liable, but because she has no 
 separate existence she can not be sued alone, and her 
 husband must be joined with her. If the wife dies after 
 an action has been commenced against her and her hus- 
 band, the action abates ; but if the husband dies, then the 
 action goes on against her. It is clear, therefore, to my 
 mind that the only reason why the husband is joined at 
 all in such an action is from the disability of the wife to 
 sue or be sued alone. But as soon as there has been a 
 divorce a vinculo matrimonii, that disability ceases ; she 
 is in the same position as if she had never been married, 
 and the husband ought no longer to be joined. 
 [479] Where the marriage is not dissolved, but the parties 
 are judicially separated, then it is necessary to make 
 some provision for a state of things not recognized by the 
 common law ; for Head v. Briscoe (/) is an authority that 
 for wrongs committed by the wife during coverture, the 
 
 (.f) Wright V. Leonard, 30 I.. J. 367, C. P., judgment of Willes, J. 
 {^h) Except, of course, torts which she may have committed as his agent. 
 (i) 5 C. & P. 484.
 
 HUSBAND AND WIFE. 503 
 
 husband is jointly liable, even though they might be liv- 
 ing entirely separate. This was done by the provisions 
 of the 20 & 21 Vict. c. 85. . . . But there was no 
 necessity to make any analogous provision for a dissolu- 
 tion of marriage for which the common law is suffi- 
 cient." {k) 
 
 {k) Capel V. Powell, 34 L. J. 16S, C. P., judgment of Erie, C. J. For the 
 effect of errors as regards joinder of parties in actions against husband and wife, 
 see Rule 69, which applies, mutatis mutandis, to actions for tort.
 
 504 PARTIES TO ACTIONS. 
 
 CHAPTER XXXI. 
 
 BANKRUPT AND TRUSTEE. 
 
 Rule ioS. — A bankrupt can be sued both before 
 and after obtaining an order of discharge for all torts 
 committed by him. 
 
 A discharge in bankruptcy is no defense to an action 
 for tort, {a) 
 
 Torts founded on contract. — It is said that even where 
 the plaintiff may at his choice sue either for breach of 
 contract or in the form of an action for tort, the discharge 
 is no bar to the action if he chooses to sue in the latter 
 form, {b) unless, indeed, he has already proved for his 
 claim, in which case he will be taken to have elected to 
 waive the tort, {c) 
 
 It may be open to doubt whether the present Act, 
 which in effect makes all claims proveable which are 
 grounded on contract, may not make the order of dis- 
 charge a bar to any claim which, in whatever form the 
 action be brought, is substantially a claim for compensa- 
 tion for a breach of contract. (</) 
 
 (d) Bankruptcy Act, 1869, ss. 31 and 49. 
 
 (b) Parker v. Crole, 5 Bing. 63. 
 
 (c.; Griffith & Holmes, Bankruptcy, 2nd cd., 964. 
 
 (</) Compare, as to tilings in action. Bankruptcy Act, 1869, ss. 4 and 22. 
 The latter certainly suggests thf idea that the Trustee must sue for all the 
 bankrupt's things in action.
 
 EXECUTORS AND ADMINISTRATORS. 505 
 
 CHAPTER XXXII. 
 
 EXECUTORS AND ADMINISTRATORS. 
 
 Rule 109. — The personal representatives of the 
 deceased (J. e., his executors or administrators) can 
 not be sued for torts committed by him. 
 
 The principle of the common law that an action for a 
 wrong does not survive, applies as well to the liability 
 to be sued as to the right to sue. This principle has, 
 even as regards the liability of executors, &c., to be sued, 
 been greatly modified by exceptions, but not to the same 
 extent as in its application to their right to bring an 
 action ; and though the exceptions are nearly as extensive 
 as the rule itself, they are themselves subject to limita- 
 tions, which make it expedient, for the sake of clearness, 
 to treat the common law principle as still forming the 
 general rule, and to consider the modifications of it as 
 exceptions. 
 
 If X. assaults, slanders, or libels A., or through his 
 negligence kills A., and dies after committing these 
 wrongs, no action can be brought against his representa- 
 tives. So, again, if X. injures A.'s property, e. g., con- 
 verts or destroys his goods, or trespasses on his land, and 
 dies more than six months after committing these wrongs, 
 no action, at any rate in the form of an action for tort, can 
 be brought against X.'s representatives. 
 
 Exception i. — Injuries to property within 3 & 4 Will. IV. c. 
 42. 
 
 Under 3 & 4 Will. IV. c. 42, s. 2, actions may be 
 brought against executors or administrators for any injury
 
 5o6 PARTIES TO ACTIONS. 
 
 to property, whether real or personal, committed 
 [4S2] by the testator or intestate within six months before 
 
 his death. Thus, for example, if a 'testator or 
 intestate takes coal from the plaintiff's land, and raises 
 part of it within six months before his death, his executor 
 or administrator is liable to be sued in trespass for so 
 much as was raised within that period ; {a) or should the 
 deceased obstruct a watercourse, defraud the plaintiff, 
 convert his goods, {b) or in any other way injure the 
 plaintiff's property, the representatives of the wrong-doer 
 will be Hable to be sued, provided the wrong were com- 
 mitted within six months of his death, {c) 
 
 The action must be brought within six calendar 
 months after the executors or administrators have taken 
 upon themselves the administration of the estate and 
 effects of the deceased ; {d) and these six months date not 
 from the death of the deceased, but from the time when 
 the representatives have taken upon themselves the 
 administration of his estate. 
 
 Exception 2. — Actions for dilapidations. 
 
 At common law, independently of any statute, an 
 action may be brought for dilapidations against the exec- 
 utors of an ecclesiastical person by his successor. (<?) 
 
 Exception 3. — Actions for tort brought in the form of 
 actions on contract. 
 
 This is an exception in reality, but not in form. 
 
 In order to avoid the rule that actions for wrongs do 
 not survive, actions were often brought in the form oi 
 actions for breach of contract, though in reality grounded 
 on a tort. Thus, though an action on the custom of the 
 
 {a) Powel V. Rees, 7 A. & E. 426. 
 {b) Richmond v. Nicholson, 8 Scott, 134. 
 {c) See 2 Williams, Executors, 6th ed., 1602, 1603. 
 {d) 3 & 4 Will. IV. c. 42, s. 2. 
 
 (e) 2 Williams, Executors, 6th ed., 1603. See, as to a devastavit, 4 & 5 W 
 & M., c. 34, s. 12 ; 2 Williams, Executors, 6th ed.. isqq
 
 EXECUTORS AND ADMINISTRATORS. 507 
 
 realm against a common carrier was considered (/) 
 
 to be an action for a tort, and therefore not to lie [483] 
 
 against a carrier's executors, an action for breach 
 
 of the contract to carry safely, could be brought against 
 
 them for the same cause, {g) 
 
 (/) See autf. 
 
 {g) Powell V. Layton, 2 N. R. 370. See Cowp. 375. Collen v. Wright, 7 
 E. & B 301 ; 26 L. J. 147, Q, B.; 8 E. & B. 647; 27 L. J. 215, Q. B. (Ex. 
 Ch.).
 
 5o8 PARTIES TO ACTIONS. 
 
 CHAPTER XXXIII. 
 
 EJECTMENT. 
 A. — PLAINTIFFS. 
 
 Rule no. — The claimant (a) or plaintiff in eject- 
 ment must be a person who has the legal right to 
 enter and take possession of the land, &c., in respect 
 of which action is brought, as incident to some estate 
 or interest therein, (b) 
 
 Nature of ejectment. — Ejectment is the action by means 
 
 of which a person who is kept out of possession of land 
 
 (or of corporeal hereditaments) {d^ which he has a 
 
 [485] right to enter upon or can have the wrongful pos- 
 
 (a) Claimant is the technical term for a plaintiff in ejectment. In explain- 
 ing this and the following rules, the general term plaintiff is usually employed. 
 
 {b) See Cole, Ejectment, 65, 72. He adds the words " not barred or extin- 
 guished by the Statute of Limitations." As where a right is barred or extin- 
 guished it can not be strictly said to exist, these words are unnecessary for the 
 purpose, at any rate, of the present rule. 
 
 ((/) Cole, Ejectment, 72. Ejectment lies only for the recovery of certain 
 kinds of property, viz., lands, tenements, or incorporeal hereditaments, the 
 general rule being that "ejectment will lie to recover the possession of anything 
 whereof the sheriff can deliver possession" (Selwyn, N. P., 13th ed., 627), and 
 in strictness will (subject to some few exceptions) not lie for the recovery of any 
 property whereon an entry can not be made (Ibid., 614, 615). It will, for 
 example, lie to recover lands, houses, a part of a house, a coal mine, a salt pit, 
 an orchard, a vestry, and so forth ; but will not lie for a canonry, which is an 
 ecclesiastical office only, or for things such as an advowson, a common in gross, 
 which are not capable of being delivered in execution. Thus, while it has been 
 held to lie for land covered with water, it has been held not to lie for a stream. 
 (For these and other examples, see r Selwyn, N. P., 13th ed., 627, 628.) Though 
 the decided cases mostly refer to the mode in which property should be described 
 in the writ, they sufficiently establish the principle, that ejectment can only be 
 brought for that kind of property, e. g., houses, &c., of which the sheriff can 
 give possession.
 
 EJECTMENT. 509 
 
 sessors turned out or ejected, and himself put into posses- 
 sion by the officers of the law. 
 
 Any person who has an estate in land (provided it is 
 not an estate in remainder or in reversion) has, as one 
 of the rights of property, a right to enter upon his land, 
 or to enjoy the actual possession of it. Thus, suppose 
 A. to be the owner in fee simple, or the tenant for life or 
 for years, of a house, &c. ; he has the right to enter 
 into his house, and if X. occupies the house, and keeps 
 A. out of possession, X. is, whatever the nature of A.'s 
 estate, a wrong-doer. A., if he wishes to recover pos- 
 session of his house, that is, to occupy it himself and 
 turn X. out, can, if he chooses, simply enter and by his 
 own hands, or those of his agents, turn X. out of the 
 house ; for A., who has, in the case supposed, a right to 
 enter, and also a right to exclude X., can, if he choose, 
 exercise his rights without requiring the intervention of 
 the law. [e) But tliis course is exposed to several disad- 
 vantages, and can not be adopted where there is any doubt 
 whatever as to the title of the person who wishes to 
 recover possession. A.'s safest course is to bring an 
 action of ejectment against X., the main object of which is 
 to effect, by means of the sheriff and his officers, the same 
 result which might have been directly effected by A. him- 
 self; viz., the putting A. into possession, and turning X. 
 out of occupation. If A. succeeds in the action, this is 
 exactly the result obtained, since, on a judgment in his 
 favor, a writ is issued to the sheriff, commanding him to 
 put A. into possession. A. must in order to succeed, show 
 a good title, i. e., a distinct right on his part to enter into 
 the house and turn X. out of it ; and can not succeed 
 merely by showing that X. had no right to be in 
 the house, for it is a fundamental principle in an [486J 
 actionof ejectment that the i)laintilf must succeed 
 on the strength of his own title, and not on the weakness 
 of the defendant's. Hence ejectment raises the question 
 of the plaintiff's title, but the action itself is, it must be 
 borne in mind, a mere possessory action. If the plaintiff 
 
 (<•) See Cole, Ejectment, 66-71.
 
 510 PARTIES TO ACTIONS. 
 
 succeeds, all that is necessarily proved is that he has a 
 right to be put into possession, and if he fails it does not 
 follow that the defendant has a right to possession either 
 against all the world, or, at another time against the 
 plaintilT himself. The defendant X., for example, may 
 answer A.'s claim by showing that some third person, M., 
 has a right to possession, and thus that neither X. nor A. 
 have such a right. 
 
 An action of ejectment used to rest upon a series of 
 legal fictions which it is not within the scope of this 
 treatise to explain. (/) The modern action under the 
 Common Law Procedure Act, 1852, is, in substance, the 
 old action divested of the fictions on which it depended. 
 It commences b}" the following writ, which combines to 
 some extent the characteristics of a writ of summons and 
 of a declaration, and serves to show who are the persons 
 by and against whom the actions must be brought. 
 
 " Victoria, «&c. To X., Y., and Z. [names of all the 
 tenants in possession], and all persons {h) entitled to 
 
 defend the possession of , in the parish of , in the 
 
 county of , to the possession whereof A., B., and C, 
 
 some or one of them, claim to be (or to have been on and 
 
 since the day of , A.D. ) entitled, and to 
 
 [487] eject all other persons therefrom : these are to will 
 
 and command you or such of you as deny the 
 
 alleged title, within sixteen days after service hereof to 
 
 appear in our Court of , to defend the said property, 
 
 or such part thereof as you may be advised; in defaul 
 whereof judgment may be signed, and you turned out of 
 possession." {i) 
 
 Legal right. — The plaintiff or claimant in an action of 
 ejectment must {k) have a legal right, and a legal title 
 
 (/) See, for an explanation, 3 Steph., Com.. 726 ; Cole, Ejectment, 1-3. 
 
 (h) These words refer to landlords, to whom the tenants in possession ought 
 to give immediate notice when the writ is served (C. L. P. A. 1852, s. 206 ; 
 Cole, Ejectment, 165), also to any other persons not known to the claimant to 
 be in possession of any part of the property, but who may wish to appear and 
 defend the action with leave of the court or a judge. Cole, Ejectment, 124, 
 701. 
 
 (i) C. L. P. Act, 1852, Sch. A.. No. 13. 
 
 (i) See Rule 3.
 
 EJECTMENT. 5 1 1 
 
 ts sufficient, notwithstanding that the defendant has an 
 equitable title. (/) Hence, where the legal estate is vested 
 in trustees, as where A. holds land in trust for M., the 
 action should be brought in the name of A. (;;z) So if 
 M. is a mortgagor, and A. a mortgagee, A.'s name should 
 be used in suing X. If an action is brought by the 
 trustee, A., a lease from the cestui que trust, M., can not 
 be set up against the trustee in any case without the aid 
 of a court of equity, (w) and an equitable defense can not 
 be pleaded in ejectment, {o) As, generally speaking, a 
 merely equitable title to the land is not sufficient to 
 support an ejectment, (/•) the person who has the legal 
 estate, e. g., a mortgagee, may often bring ejectment 
 against the person who has the equitable estate, e. g., the 
 mortgagor. Thus, a mortgagor who remains in posses- 
 sion after the execution of a mortgage containing no 
 proviso or stipulation amounting in law to a re-demise, is 
 not considered as a tenant from year to year to the mort- 
 gagee, nor even as a tenant at will He is at most 
 a tenant at sufferance, and may be treated either as [488] 
 a tenant or as a trespasser, at the election of the 
 mortgagee, who may maintain ejectment against him 
 without any previous notice to quit, or demand of posses- 
 sion, iq) The question as to a mortgagee's right to bring 
 ejectment against a mortgagor, or vice versa, depends upon 
 the interest left in the mortgagor. If he stands in the 
 position of a tenant to the mortgagee, as he generally 
 does, he can not be sued in ejectment until the tcnnncv 
 be terminated by his default, or otherwise ; {r) and if he 
 be in the position of a tenant, he has the same right to 
 
 (/) Doe d. HugV.es v. Jones. 9 ^f . & W. 372, 377 : i Howl. N. S. 352 : 
 Fenny d. Enstham v. Child. 2 M. & S. 255. 
 
 («/) It may. however, he convenient to join llie name of X., which can l.c 
 done in action of ejectment, see post. 
 
 (ft) Baker v. Mcllish. 10 Ves. 554 ; Doc d. Davies v. Evans, 9 M. & W. 4'^- 
 
 (0) Nt-ave V. Avery, 16 C. R. 328 ; 24 I.. J. 207, C. P. 
 
 ( f>) See Cole. F-icctment, 73 
 
 (^) Cole. Ficcfment. 462; and see Ibid , 4^2- 82, as to actions by mort- 
 gagce and bv mortRaRor. 
 
 (r) See C. I-. P. Act, 1852, ss. 219. 220, for spcci:il provisions for the pro- 
 tection of mortgagors
 
 512 , PARTIES TO ACTIONS. 
 
 sue the mort^ai^ee if the latter turns him out of posses- 
 sion, as evcrv tenant has to sue his landlord if the latter 
 dispossesses him durim:^ the tenancy, since the landlord 
 does not, durino- the tenancy, possess the right of entry. 
 
 Though a merely equitable title, is not sufficient to 
 support ejectment, a title by estoppel will sometimes do 
 as against a tenant or other person subject to the estoppel. 
 {s) A cestui que trust, for example, may sometimes sue 
 ^A■ith success where the defendant, e.g., as being his ten- 
 ant, can not deny that the plaintiff has a legal right, {t) 
 
 Right of entry. — The right to enter into and take 
 possession of the land is the foundation of an action of 
 ejectment. Anything which shows that this right does 
 not exist in the plaintiff is fatal to his success, and the 
 plaintiff must further possess this right in virtue of, or 
 incident to, some estate or interest. 
 
 The right must be a right to the actual possession of 
 the property. A right to the rent is not sufficient, {u) 
 the remedy in such case being by distress, {x) or an action 
 for rent, {y) The right to enter must be imme- 
 [489] diate ; that is to say, if A. lets land to B., he can not 
 bring an action of ejectment against X. during the 
 continuance of the tenancy. A reversion or future estate 
 is not sufficient to support ejectment, unless coupled with 
 some forfeiture or defeasance of the previous estate in 
 possession, {z) But after the expiration of a term or other 
 estate, the immediate remainder or reversion becomes an 
 estate in possession, and will warrant an actual entry. 
 A., for example, lets land to B., B.'s tenancy determines, 
 and X. after this enters and takes possession, A. may then 
 sue X. An outstanding term is therefore sufficient to 
 defeat an action of ejectment, and even a mere tenancy 
 from year to year, implied from proof of payment of rent, 
 
 {s) Doe d. Harvey v. Francis, 4 M. & W. 331 ; 7 D. P. C. 193 
 
 (/) Cole, Ejectment, 73. 
 
 (m) Doe d. Costa v. Wharton, 8 T. R. 2 ; Hill v. Saunders, 2 Bing. II2. 
 
 (x) Moss V. Gallin-ore, I Doug. 279. 
 
 iy) Voller v. Carter, 4 E. & B. 173. 
 
 (z) Doe d. Wilson v. Phillips, 2 Bing. 13 ; Doe d. Wilson v. Abel, 2 M. & S, 
 
 541.
 
 EJECTMENT. 513 
 
 and not shown to have been duly determined by a notice 
 to quit or otherwise, is sufficient to defeat an ejectment, 
 althoug-h the defendant does not pretend to derive any 
 title through or under such tenants, or to defend on their 
 behalf, {a) unless, indeed, he be estopped from setting up 
 such outstanding tenancy. {Jj) 
 
 The plaintiff may claim in the writ to have been enti- 
 tled on and since the day of ; that is to say, he 
 
 may claim to have had a right of entry, and therefore to 
 have been injured by the defendant's keeping possession 
 on and from any day prior to the issue of the writ which 
 he chooses to name. The plaintiff gains some advantages 
 by placing his title as early as possible, but the doing so 
 involves this disadvantage, that if a plaintiff claim to have 
 been entitled on and since a specified day, he must prove 
 the right of possession to have been in him on that day, 
 and thence until the commencement of the action, whereas 
 the right of possession may have accrued after that date 
 and before action brought, either by the expiration of a 
 notice to quit or by a demand of possession, or 
 from some other circumstance, {e) A. brings eject- [490J 
 ment against X., his tenant, having given him notice 
 to quit on the ist of January such notice expiring, e. g., 
 on the 25th of March. Ejectment is brought on the 26th 
 of March. If A. simply claims to be entitled, he will 
 succeed, since he has a right to enter on the 26th. If he 
 claims to be entitled on and from the first of January, he 
 will fail, since he can not show a right of entry on that 
 day. (/) 
 
 Plaintiff after etitry remitted to his previous estate. — The 
 plaintiff, on being put in possession of land, does not 
 obtain any title other than that which he before possessed. 
 
 (a) Doe d. Wawn v. Horn, 3 M. & W. 333. 
 
 Kb) See Cole, Kjectment, 288, 289. Compare the rules as to the person to 
 bring trespass, ante. 
 
 (i'l Cole, Ejectment 95, 95. 
 
 (/) Though an ejectment depends upon a right of entry, •' an ejectment for 
 non-payment of rent may sometimes be maintained under 15 & 16 Vict. c. 76 
 (Commr.n Law Procedure Act, 1852), s. 2to, where an entry wiiliout previous 
 ejectment would not be lawful, no deman<l of payment having been duly made 
 ftccordin^r to ihe provisions of the common la«." Cole, Kjectment, 6q. 
 33
 
 514 PARTIES TO ACTIONS. 
 
 He is remitted to his previous estate ; that is to say, he 
 becomes seized or possessed of the land for such an estate 
 therein as was legally vested in him before and at the 
 time of his entry. " If he has a freehold, he is in as a 
 freeholder; if he has a chattel interest, he is in as a 
 termor ; and in respect of the freehold, his possession 
 enures according to right. If he has no title, he is in as 
 a trespasser, and, without any re-entry by the true owner, 
 is liable to account for the profits." {g) His main advan- 
 tage is, that on being lawfully in possession, he can put 
 any other claimant who wishes to turn him out, to the 
 proof of title on the claimant's part. 
 
 In applying the principle that a person in possession 
 can put all others to the proof of their title, it is necessary 
 to bear in mind the distinction between occupation and 
 possession, and that the person relying on his rights as 
 possessor, must be not only in occupation but in legal pos- 
 session. If, for example, X. enters into the house of 
 [491] A. without any title, he can not, simply from his 
 being in the house, claim the rights of a possessor. 
 If the question is, which of two persons is in possession, 
 that person must be considered to be so who has the title, 
 or, in other words, the right to the possession. " If there 
 are two persons in a field, each asserting that the field is 
 his, and each doing some act in the assertion of the right 
 3f possession, and if the question is, which of these two 
 is in actual possession, I answer, the person who has the 
 title is in actual possession, and the other person is a tres- 
 passer. They differ in no other respect. You can not 
 say that it is a joint possession ; you can not say it is a 
 possession as tenants in common. It can not be denied 
 that one is in possession, and the other is a trespasser. 
 Then that is to be determined, as it seems to me, by the 
 fact of the title, each having the same apparent actual 
 possession. The question as to which of the two really 
 is in possession is determined by the fact of the posses- 
 sion following the title ; that is, by the law, which makes 
 
 (g) Taylor d. Atkyns v. Horde, i Burr. 1 14, per Curiam; see Doe cL 
 Daniel v. Woodroffe, 2 H. L. 811.
 
 EJECTMENT. 515 
 
 it follow the title." (z) If, again, X. has entered into 
 occupation as the tenant or by the permission of A., he 
 can not set up his possession against the claims of A. ; 
 since in such a case the possession of X. is the possession 
 of A., who, in a legal point of view, has never been out 
 of possession. 
 
 Particular persons zuko may bring ejectment. — As eject- 
 ment may be brought by any person legall}- entitled to 
 enter upon land, it may be brought by partners, by a cor- 
 poration, (/) by an infant (;;/) or an infant's guardian, («) 
 by a husband and wife, {0) by a bankrupt's trustee, (/ ) 
 and by personal representatives. (^) 
 
 Rule hi. — All the claimants, or plaintiffs, [492] 
 in whom the title is alleged to be, should 
 join in bringing an action of ejectment. 
 
 All persons claiming to have a title giving them a right 
 of entry, and on which therefore they can maintain eject- 
 ment, may and should join in the action, and a verdict 
 will be given in favor of the claimant or claimants enti- 
 tled to recover, (r) If, therefore, A., B., and C. sue X. 
 in ejectment for the possession of a house and lands, 
 there are various verdicts that may be given. A verdict 
 may be given in favor of all of them or against all of 
 them, or in favor of some of them, e. g., A. and B., and 
 against others ; or a verdict may be given that either all 
 or some of the claimants are entitled to some part only 
 of the property claimed, e. g., to the house but not to the 
 
 (?) Jones V. Cli.ipnian, 2 Exch. 820, 821, judgment of Maule, J. 
 
 (/) I Selwyn, N. P., 13th t:(l-. ^24. 
 
 (hi) Ibid. ; Colt, Ejectment, 584, 585. 
 
 (//) Il.M., 583. 
 
 [o) Doe d. Ilellings V. IJird, 11 E.-ist, 49. 
 
 (/>) nankruplcy Act, 1869, s. 415, and s. 22. 
 
 ((/) Sec post. 
 
 (r) The Common Law rrocedure Act, 1852, enacts " that the questional 
 
 the trial shall ... be whether the statement in the writ of the title of the 
 
 claimnnts is true or false, and if true, then which of the claimants is entitled, 
 
 nd whether to the whole or part, and if to part, then to which jiart of the 
 
 roperty in question." .Sect. 180.
 
 5i6 PARTIES TO ACTIONS. 
 
 land. The general rule as to co-owners, seems to be that 
 they may either sue jointly and recover the whole of the 
 property to which they are jointly entitled, or that one 
 or more of them may sue without joining the rest, and 
 recover his or their share or proportion of the whole 
 property, (.v) 
 
 Thus, in the case of partners, an action for ejectment 
 for the recovery of real property belonging to the firm, 
 ought to be brought in the name of all those persons in 
 whom the legal estate is vested ; and if one partner alone 
 has the legal estate, he should bring the action in his own 
 name, (/) and his title will not be affected by the circum- 
 stance of rent having been paid to the firm, and 
 [493] receipts having been given all the partners. So if 
 one partner only has made a lease of the partnership 
 property, as his title can not be disputed by the lessee, 
 ejectment may be maintained by him alone, {u) Execu- 
 tors stand in a peculiar position ; they are for some pur- 
 poses joint tenants, and for others tenants in common, and 
 it seems that as the whole term and estate is vested in each 
 executor, any one or more of them may (without the others) 
 recover in ejectment the whole of the property, {v) But 
 in all cases of doubt it is best to join every one who may 
 be supposed to have a title, otherwise the defendant may 
 succeed in the action, by setting up against the plaintiffs 
 the better title of some person who has not joined. In 
 actions of this description, persons can join who could 
 not be joined in an ordinary action. Thus, if the legal 
 estate is vested in trustees, but the action is brought by 
 the cestui que trust, he should, if possible, first obtain 
 their authority or consent to their names being used as 
 plaintiffs; but if they unreasonably refuse, he should offer 
 to idemnify them against the costs of the action, includ- 
 ing the defendant's costs, and afterwards without their 
 
 {s) See Cole, Ejectment, 2S5, 286 ; C. L. P. Act, 1852, s. 180 ; and Day, C. 
 L. P. Acts, 3rd ed., 148. 
 
 (t) Doe V. Baker, 2 B. Moore, i8g. 
 
 («) See Lindley, Partnership, 2nd ed., 482, 483. 
 
 \v) Doe d. Stace v. Wheeler, 15 M. & W. 624 ; Heath v. Chilton, 12 M. & 
 W. 632 •- Cole. Ejectment, 534.
 
 EJECTMENT. 517 
 
 consent use their names together with his own as claim- 
 ants. The trustees would not be able to discontinue or 
 defeat such action without the leave of the court or a 
 judge, ix) Such a joinder would, in the case of an ordi- 
 nary action, be, it is conceived, a fatal error, {y) 
 
 Ejectjneiit by one co-owner against another. — If land is 
 owned by several persons jointly, or in common, e. g., as 
 joint tenants, tenants in common, &c., each is entitled to 
 enter upon and occupy it, {£) and such occupation is no 
 infringement upon the rights of his co-owners. Further, 
 one co-owner of land who merely occupies the 
 whole is not liable at law (or in equity) to pay rent to [494] 
 che other owners ; {a) but if one co-owner is actually 
 excluded, or to use the technical term, " ousted " by the 
 others, he can bring ejectment for his undivided share ; {p) 
 and, having recovered in ejectment, he can sue in trespass 
 for mesne profits, {c) 
 
 B. DEFENDANTS. 
 
 Rule 112. — The persons to be made defendants in 
 an action of ejectment, i. e., to be named in the writ, 
 are all the tenants in possession of the land, «Slc., 
 sought to be recovered. 
 
 The object of the plaintifT in ejectment being to turn 
 out of possession the persons in actual possession ot the 
 land, whether they claim to possess by virtue of their own 
 title or under the title of another, it is against them that 
 he directly proceeds. They arc the persons named in the 
 
 ix) Cole, Ejectment, 75. 
 
 ( /) Sec post. 
 
 (s) Coke. I.ilt., 199 1) ; i I.inrilcy, ['.artnership. 2nd ed.. 70. 
 
 (n) Wheeler v. Home, VVilles, 20S ; McMahuii v. lJuri.hcll, 2 rhill. 127 ; I 
 l.indley, Partnership, 2iid ed., 70. 
 
 {b) Coke, I-iti., 199 I), 2(X) a. 
 
 U) Ooodtitle V. Toombs. 3 Willes, Il3 ; I l-indlcy. I'artnership, 2nd cd., 
 /o ; Doe d. Ilellings v. llir.i, ii Ea-,1. 49 \ I*'"^ "■ "'"■"• 5 >•• -!^ ^V. 564 Cora- 
 |jaie, as to right of one co-owner to bring trover. itnU.
 
 5i8 PARTIES TO ACTION'S. 
 
 writ, and upon them it must be served, {d) Suppose, for 
 example, that A. claims land in the actual possession ot 
 X.. who holds it as tenant for years of Y. It is against X. 
 and not against Y. that A. directly proceeds, i. e., X. is 
 the person mentioned by name in the writ. So, again, if 
 A. has let his land to Y., who has underlet it to X., and 
 A. needs to recover possession, the person against whom 
 he proceeds is the under-tenant X., and not Y. under 
 whom X. holds. 
 
 The persons to be named in the writ are, therefore, all 
 
 the tenants in possession, i. e., every person who 
 [495] occupies, as tenant or undertenant (or as owner) {e) 
 
 any part of the property. (/) Even a lodger who 
 has the exclusive use of certain rooms may, though it is 
 not necessary or usual to do so, be joined as a defendant. 
 On the other hand, mere friends and visitors of the tenant 
 in possession, his wife, children, and servants, do not 
 occupy as tenants, and therefore should not be included 
 in the writ as defendants, i. e., they are not in possession ; 
 for the occupation, e. g., of a servant, is, in contemplation 
 of law, the possession of his master, {g) though a servant 
 may so act as to render himself personally liable to be 
 sued in ejectment. {Ji) 
 
 Rule 113. — The persons who have a right to 
 defend in an action of ejectment are any persons 
 named in the writ, and any person who is in posses- 
 sion by himself or his tenant. 
 
 (</) C. L. P. Act. 1S52, s. 170, provides a course of proceeding where the 
 possession is vacant. 
 
 {e) The word tenant as used here may possibly cause some misunderstand- 
 in<:. vSuppose that X., who claims to be the owner of the fee, also occupies his 
 own land. He must be sued as being the tenant in possession. 
 
 (/) Cole, Ejectment, 75 ; Doe d. Smith v. Rowe, 5 Dowl. 254; Doe d. 
 Williamson v. Rowe, 10 Moore, 493 ; Doe d. Darlington v. Cock, 4 B. & C 
 259 • Doe d. Turner v. Gee, 9 D. V. C. 612 
 
 (^) Bertie v. Beaumont, 16 East, 33 ; Mayhew v. Suttle, 4 E. & B. 347 
 
 (/i) Doe d. James v. Staunton, i Chii. 113 ; Doe d. Atkins v. Rowe, 2 Chit 
 179 ; Cole, Ejectment, 7^'
 
 EJECTMENT. 51Q 
 
 The object of the plaintiff in ejectment is to obtain, 
 not damages, but possession of the land. He brings his 
 action against the persons actually in possession, and if 
 he succeeds, e. g., through their letting judgment go by 
 default, he turns them out and himself obtains possession. 
 This may cause damage to a person, who owns but does 
 not himself actually occupy the land, and is therefore not 
 made a party to the action. A., for example, brings an 
 action of ejectment against X. and Y., who are in the 
 occupation of land as tenants of Z. from week to 
 week; Z. is not made a party to the action, the [496] 
 tenants let judgment go by default, and A. obtains 
 possession. This is obviously an injury to Z., for he must, 
 in order to regain possession, either enter and turn A. out, 
 or, in his turn, bring an action of ejectment against A. 
 But the injury may extend far beyond this, and Z. may 
 be deprived of his property, for A. may have no title, 
 and, therefore, Z. may be able if sued to resist his claim. 
 But Z.'s own title may be defective, and if, therefore, he 
 is once put out of possession by A., he may be unable to 
 maintain successfully an action of ejectment against A., 
 or in any way to recover possession of the land. . In a 
 case in which it was settled that a landlord has an abso- 
 lute right to defend an action brought against his tenant, 
 the importance of the right was thus pointed out by 
 Martin, B. " But it was said, this is a matter oi little 
 importance, and the only consequence [01 not allowing 
 the landlord to defend] would be that a person abroad 
 might be turned out of possession, and he might niainlain 
 an action of ejectment himself and recover possession. 1 
 ai)j)rehc'nd a more mistaken view of the law could not 
 possibly be submitted U) the court. I ai>prchend tliat, 
 ])robably, one half of the titles of i)crsons in this kingdom 
 depend on their being in possession. Bv the rule ol law, 
 the burden is cast upon the lessor of the plaint ilf \\\ eject- 
 ment of making out his title. And how many i)crsons are 
 there whose titles are perfectly unassailable? No |)crson 
 can meddle with or turn them out, because they would be 
 utterly unable to do it by reason of detective evidence
 
 520 PARTIES TO ACTIONS. 
 
 and a variety of other matters that may impede the 
 establishment of all rights; and so far from the circum- 
 stance of a person being turned out of possession being a 
 matter of little importance, it is of the utmost importance 
 to the security of landed property that persons should 
 not be turned out of possession, unless some clear proof 
 is given against them, upon which the person so claiming 
 
 succeeds." {k) 
 [497] To ensure that all the persons interested in the 
 defense shall have an opportunity of resisting the 
 plaintiffs* claim, the law has given to two classes of per- 
 sons a right to be defendants. 
 
 Pcrso?is named in the writ. — All the persons in actual 
 occupation of the land claimed, must, as already pointed 
 out, be named in the writ and made defendants. The 
 persons so named, even if it happened that some of them 
 ought not to have been named, have a right to defend ; (/) 
 and each of the persons so named must be served with 
 the writ. 
 
 Persons not named in the writ. — Every tenant to whom 
 a writ in ejectment is delivered, or to whose knowledge 
 it comes, is bound under a heavy penalty forthwith to 
 give notice thereof to his landlord, or his bailiff or 
 receiver, {in) Security is thus provided, that the land- 
 lord shall know of any action of ejectment being brought 
 to obtain possession of property in which he has an inter- 
 est. But this is not in itself a sufficient protection ; for 
 though a defense by the tenant would be a good defense 
 by the landlord, a landlord can not compel his tenants, on 
 whom the writ is served, to appear and defend the action, 
 or to allow him to do so in their names, {n) It is, there- 
 fore, enacted that, " Any other person not named in such 
 writ, shall, by leave of the court or a judge, be allowed to 
 appear and defend, on filing an affidavit showing that he 
 is in possession of the land, either by himself or his ten- 
 
 {k) Butler V. Meredith, 24 L. J 246, Ex., judgment of Martin, B. 
 (/) C. L. P. Act, 1852, s. 171 ; Cole, Ejectment, 123, 
 {m) Ibid., s. 209. 
 
 (m) Doe d. Turner v. Gee, 9 Dowl. 612 ; Right v. Wrong, Barnes, 173 ; 
 Cole, Ejectment, 123.
 
 EJECTMENT. 521 
 
 ant." io) Under this provision, any person has a right to 
 defend (/) who can satisfy a judge that either he is him- 
 self in possession, or that his tenants are in possession. 
 If the persons named in the writ wish to defend, the 
 person not named is made co-defendant with them. 
 If, on the other hand, the persons named are not [498J 
 willing to defend, the person applying for leave to 
 defend is made defendant in their place, {q) 
 
 (tf) C. L. P. Act, 1852,3. 172. 
 
 (/) See Butler v. Meredith, ii Ex. 85 ; 24 L. J. 239, Ex. 
 
 {q) Under an earlier enactment (ii Geo. II., c. 19, s. 13), to the same effect 
 it has bem held that any one has a risjht to sue who claims a title consistent 
 with the position of the occupier. Thus a mortgagee out of possession (Doe d. 
 Tilyard v. Cooper, 8 T. R. 645 ; Doe d. Pearson v. Roe, 6 Bing. 613 ; an heir 
 who has never been in possession (Doe d. Hiblethwaite v. Roe, 3 T. R. 783 n.), 
 a devisee in trust in the same position (Lovelock v. Dancaster, 4 T. R. 122) ; 
 the sublessee of boxes in a theatre (Croft v. Lumley, 4 E. & B. 608), have been 
 allowed to come in and defend. But a cestui que trust who has never been in 
 posse-^sion (Lovelock v. Dancaster, 4 T. R. 7S3), and a mere remainder-man 
 <VVhitworth v. Humphries, 5 H. & N. 1S5), have been refused leave to defend. 
 See further. Day, C. L. P. Acts, 3rd ed. 143, 144 
 
 Trespass /o> mesne pro/its. — As in an action for ejectment no damages are 
 recoverable except as between landlord and tenant under C. L. P. Act. 1S52, s. 
 214, the law has provided a remedy, by way of supplement to the action of 
 ejectment, in an action of trespass for mesne profits. In this action compen- 
 sation may be recovered for the use and occupation of the proi)erty recovered 
 in the ejectment during the period for which it was actually or constructively 
 occupied by the defendant (Doe v. Harlow, 12 A. & E. 40 ; Doe v. Challis, 17 
 Q. B. 166), and also such compensation as the jury may give the plaintiff for 
 his trouble under the circumstances proved before them, or for any damage 
 ■done to the properly by the defendant, and for the costs of the previous .iction 
 of ejectment (Cole, Ejectment, 635). The plaintiff or plaintiffs in the action 
 should be the claimant or claimants in the original action of ejectment. 
 
 The defendant or defendants should be the person, or all or any of the 
 persons against whoni the judgment was obtained in ejectment. 
 
 Any person may also be sued in an action under whom the tenants in pos 
 session held during the action, and to whom notice of ejectment was duly given 
 under the C. L. P. Act, 1852, s. 209 ; or who. a.s landlord or otherwise, pro- 
 cured the tenants in possession to defend the ejectment, or to witiiiioUi the 
 possession of the property from the claimant on demand ma«le by him. 
 
 The actiott is maintainable against any person who, as under-tenant or 
 otherwise, has occupied llic property .after judgment obt^iincd in ejectment. 
 
 The action lies against personal representatives for mesne profits received 
 by the deceased within six calendar months before his dciith (3 >* 3 Will, 4, C^2, 
 fc. 3). bee generally as to thia action. Cole. Ejectment, 637-038.
 
 523 PARTIES TO ACTIONS. 
 
 CHAPTER XXXIV. 
 
 NON-JOINDER AND MIS-JOINDER OF PARTIES, 
 AND AMENDMENT. 
 
 Rule 114. — An action brought by a wrong plain- 
 tiff, or against a wrong defendant, must fail, {a) 
 
 If A. sues X. when B. ought to have sued X,, or if X. 
 IS sued by A. when Y. ought to have been sued, the error 
 is fatal, {b) For if a wrong plaintiff sues, or a wrong 
 defendant is sued, either A., the plaintiff, is not the person 
 whose rights have been invaded, or X., the defendant, is 
 not the person who has invaded A.'s rights. It is, there- 
 fore, impossible for A. to establish against X. that inter- 
 ference with his rights which is the basis of an 
 [500] action, [c) This rule applies both to actions ex con- 
 tractu and to actions ex delicto. 
 
 If the error appears on the pleading, it may be taken 
 advantage of by demurrer, motion in arrest of judgment, 
 or error. A. declares against X. on a contract, which on 
 
 {a) The errors which can be committed in respect of the parties to an action 
 are of three kinds : — 
 
 1. The action may be brought in the name of the wrong plaintiff, or against 
 the wrong defendant, e. g., if A. sues X. when B. ought to have sued X., or if 
 A. sues Y. when he ought to have sued X. ; or, what is exactly the same thing, 
 if A. and B. sue X. when C. and D. ought to have sued, or if A. sues X. and Y. 
 when he ought to have sued W. and Z. 
 
 2. The error may consist in a non-joinder of plaintiffs or of defendants, /. e., 
 an action may be brought by A. when it ought to have been brought by A. and 
 B., or against X., when it ought to have been brought against X. and Y. 
 
 3. The error may consist of a mis-joinder of plaintiffs or defendants, /. <?., an 
 action may be brought by A. and B. when it ought to have been brought by A., 
 or against X. and Y., when it ought to have been brought against X. 
 
 (b) The two points to be considered in respect of every kind of error are 
 first, what is the effect of the error if unamended ? secondly can it be 
 amended? 
 
 {c) See ante.
 
 NON-JOINDER AND MIS-JOINDER. 523 
 
 the face of the declaration appears to be in point of law 
 made, not with A., but with B. X. can, thereupon, demur, 
 &c. If, on the other hand, the error appears at the trial 
 It o-ives rise to an adverse verdict or a non-suit. A. sues 
 X. for the price of goods alleged to be sold by A. to X. 
 It appears at the trial that they were sold, not by A., but 
 by B. to X. There will, thereupon, either be a verdict for 
 X., or else A. will be non-suited. In either case the action 
 •will fail. 
 
 Amendment. — This error cannot be amended, for there 
 is no power possessed either by the court or a judge to 
 substitute a right for a wrong plaintiff or defendant, {d) 
 
 Apparent Exceptions. — There are some apparent exxep- 
 tions to the general principle, here laid down. In an 
 action, for instance, of ejectment by the cestui qui trust, 
 the name of the trustee has been added, {e) The error in 
 this case appeared at the trial, and the amendment con- 
 sisted rather in the addition of a party than in the substi- 
 tution of the right for the wrong plaintiff, and the action 
 further was one of ejectment, in which it seems always to 
 have been held that the court had specially wide powers 
 of amendment. A landlord, again, may in an action of 
 ejectment be allowed to defend, together with, or in place 
 of the tenant in possession. But such landlord, though 
 not mentioned by name in the writ, is in fact one of the 
 parties to the action, being sued under the general descrip- 
 tion of one of the persons entitled to defend the posses- 
 sion. 
 
 Where, further, a foreign company sued in a corpo- 
 rate name, and the defendants pleaded that it was not a 
 corporation, the court amended the writ and 
 declaration, by inserting the name of a director as [501 J 
 nominal plaintiff, he being by the law of the foreign 
 country entitled to sue. (/) This case, as well as that 
 of Blake v. Done, {g) before referred to, has been explained 
 
 {(/) Cl.iy V Oxford. I-. K. 2 Kx. 55 ; 36 1-. j. 15. Kx. 
 (e) niakc V. Done. 7 II. & N. 4f>5 : 1i '- J- "»• **'"• 
 (/) Banca Nazion.-lc v. Mamlnirgcr. 2 II. & C. 330. 
 (g) 7 M. & N. 46s : 31 I- I. iw. Kx.
 
 524 PARTIES TO ACTIONS. 
 
 on the ground that " persons not formally entitled to bft 
 parties . . . brought an action to try certain matters 
 perfectly well known to both sides;" {h) and they may, 
 perhaps, be considered instances rather of formal amend- 
 ment than of the substitution of a right for a wrong 
 plaintiff. The contrast between an amendment of this 
 kind, and an amendment allowing representatives to be 
 substituted as plaintiffs for a person dead at the time 
 when the action was commenced, has been drawn out in 
 the case in which the latter kind of amendment was 
 applied for in the following judgment of Bramwell, B. 
 " Here the plaintiff is altogether wrong, or rather, there 
 is no plaintiff; the man in whose name the action was 
 brought was dead. It can not be said that this was an 
 amendment ' necessary for the purpose of determining in 
 the existing suit the real question in controversy between 
 the parties,' nor is this an application made between the 
 parties to the suit ; for there is no plaintiff, and, therefore, 
 no existing suit, and no question in controversy between 
 the parties. If we could see some person suing who had 
 a beneficial interest in the claim made, though not legally 
 entitled to sue, the case would be within the principle of 
 the authorities cited. But the power of amendment is 
 limited to cases where there was originally a party suing, 
 possessed, though with a variety in legal description, of 
 the same interest with the party to be substituted." {i) 
 
 [502] Rule 115. — In an action on contract; 
 
 I. A non-joinder of plaintiffs is, unless 
 amended, a fatal error ; 
 
 2. A mis-joinder of plaintiffs leads only to increased 
 costs, (^k) 
 
 {k) Clay V. Oxford, L. R. 2 Ex. 55, judgment of Bramwell, B. 
 
 (i) Ibid. 
 
 {k) Most of the errors in the choice of parties can be amended either before 
 or at the trial under the C. L. P. Act, 1852, ss. 35-40, and C. L. P. Act, i860, s. 
 19. The following points should be noted: — 
 
 I. Amendments should, except in one or two cases, be made by the court at 
 a judge.
 
 NON-yOINDER AND MIS-JOINDER. 525 
 
 Non-Joinder.— \i A. sues where A. and B. ought to sue, 
 che error, if it appears on the pleadings, gives rise to a 
 demurrer, &c. ; if it appears at the trial, gives rise to a 
 non-suit, or adverse verdict. (/) 
 
 The reason of this is, that a contract by X. to pay A. 
 and B. ;^20, gives a right to A. and B. jointly, but 
 does not give a right to each of them. A contract, [503 , 
 in other words, to pay A. and B. is in itself a differ- 
 ent obligation from the obligation to pay either A. or B., 
 and, therefore, if A. alone sue, he can not by showing a 
 contract to pay A. and B. prove the existence of an obli- 
 gation to pay A. singly. The rule is, in fact, a rigid 
 application of the principle, that no one can sue for any- 
 thing which is not an infringement of his rights. A. and 
 B. have a joint right to be paid a certain sum of money, 
 and the neglect to pay it gives them together a right of 
 action, but such neglect is not an interference with any 
 right possessed by either of them singly. (;;/) 
 
 Ajuendment. — The non-joinder of plaintiffs can be 
 amended either before or at the trial. 
 
 If the defendant pleads the non-joinder of the plaintiff 
 
 2. Amendments can be made before or at the trial tliat can not be made 
 after verdict (Wickens v. Steel, 2 C. B., N. S., 4SS ; Rob^on v. Doyle, 3 E. & 
 B. 396). If a judge refuses to amend at the trial, the remedy is to apply to the 
 court for a new trial (Whitwell v. Sheer, 8 A. & E. 301). The court will not 
 interfere if the judge do not plainly appear to have been wrong (Sainsbury v. 
 Matthews, 4 M. & W. 343). and perhaps can not interfere with the exercise at 
 the trial of the discretion vested in him (Wilkin v. Reed, 15 C B. 192 ; 23 L. 
 J. 193, C. P.; Holden v. Hallantyne, 29 L.J. 149, 150. Q. 15.). 
 
 3. The power to make amendments depends upon iis appearimg that no 
 injustice will be done by the amendments (C. \.. P. Act, 1S52, ss. 34, 35, 37). 
 Hence, plaintiffs will not be added or struck out unless the persons n be so 
 added or struck out consent, or unless, in the case of mis-joindeii the person to 
 be struck out was originally introduced wilhuut his consent (Ibid., 34, 3^). 
 Hence, again, plaintiffs will not be struck out or added at the trial if it appear 
 that they were originally added or omitted to gain some undue advantngo 
 (Ibid.. 35). 
 
 4. C. L. P. Act, 1852, s. 222, and the analogous sections of the C. I-. P. 
 Acts, 1854 and i860, do not (except, perhaps, in the case of ejectment, Hlake 
 v. Done. 7 H. & N. 465 ; 31 L. J. too, Ex.) apply to amendments affecting the 
 jomdcr of parties. Kob.sfjn v. Doyle, 3 E. & H. 396 ; Wickens v. Steel, 2 C. \\., 
 N. S., 488 ; Wilkin v. Reed. 15 C. B. 192 ; 23 I,. J. 193, C. P. 
 
 (/) Bullcn, Pleadings, 3rd cd., 469. 
 
 (»») Compare Cabell v. Vaughan I Wms. Saund. 391 k. I. m. n.
 
 526 PARTIES TO ACTIONS. 
 
 in abatement, or at or before the time of pleading gives 
 notice in writing (;/) that he objects to such non-joinder, 
 the plaintiff may amend without any order on payment of 
 the costs occasioned by such amendment, {o) 
 
 The court or a judge may order a co-plaintiff to be 
 joined, either before (/) or at {q) the trial ; provided in 
 the latter case that the defendant shall not have given 
 notice that he objects to such non-joinder, (r) 
 
 Mis-joinder. — Where an action is brought by A. and B., 
 which should be brought by A. alone, judgment may be 
 given in favor of such one (or more) of them as are entitled 
 to recover, [s) But the defendant, though unsuccessful, 
 is entitled to any costs occasioned by the misjoin- 
 der. (/) 
 [504] . The misjoinder is still fatal, as it would have 
 been before the Common Law Procedure Act, 
 1852, if it is inconsistent with the cause of action alleged. 
 A. and B. may, that is to say, join in suing when it may 
 be supposed that the legal right existed in both of them, 
 e. g., when it is conceived that they were both members 
 of a firm at the time when a contract sued upon was made 
 with the firm, and if it turns out that B. was not a mem- 
 ber at that time, judgment maybe given in favor of A. 
 alone. But they can not join in cases where the right 
 can not be supposed to be in both of them, but where it 
 is supposed to be in one or other of them. If, for exam- 
 ple, A. is a bankrupt, and B. his trustee, and there is a 
 
 («) C. L. P. Act, 1852, E^. 34-36. 
 
 ((?) Ibid., s. 36. 
 
 ( p) Ibid., s. 34. 
 
 iq) Ibid., s. 35. 
 
 (;-) Ibid., s. 35. 
 
 (j) See Bremner v, Hull, L. R. i C. P. 748. 
 
 (/) C. L. P. Act, i860, s. 19. " The joinder of too many plaintiffs shall 
 not be fatal; but every action may be brought in the names of all the persons 
 in whom the legal right may be supposed to exist, and judgment may be given 
 in favor of the plaintiffs by whom the action is biought, or of one or more of 
 them, or, in case of any question of misjoinder being raised, then in favor of 
 such one or more of them as shall be adjudged by the court to be entitled to 
 recover, provided always that tiie defendant, though unsuccessful, shall be en- 
 titled to his costs occasioned by joining any person or persons in whose favor 
 Judgment i5 not given, unless otherwise ordered bv the cnirt or a judge."
 
 NON.yOINDER AND MIS-yOINDER. ^,27 
 
 doubt whether an action ought to be brought by A. or B., 
 the difficulty can not be got over by suing in the names 
 oi A. and B., for it can not be that the leg^l right can be 
 treated as existing both in the bankrupt and in his 
 trustee, and that even in those cases where either the 
 bankrupt or the trustee may sue. {n) Where a declara- 
 tion alleged that the administrator of M., and B., sued X. 
 for money payable by him to A., as administrator, and B. ; 
 for money paid by B. and M. in his lifetime ; and for 
 money lent by the administrator, &c., and B., it was held 
 that the declaration was bad for misjoinder, and that the 
 defect was not cured by the Common Law Procedure Act, 
 i860, s. 19. {x) 
 
 Thus, again, where an action was brought by an exec- 
 utor, together with a person who was not executor, and 
 there were executors who were not joined, it was held 
 {y) to be clear that the action was "not maintainable by 
 the plaintiffs, or either of them, as executors — for 
 this reason : one of the existing plaintiffs is not an [505] 
 executor. If you leave him out, the other is an 
 executor, yet not the only executor; and the plaintilT, by 
 declaring in this way, may prevent the defendant from 
 pleading in abatement, which otherwise she woukl be 
 entitled to do. It could never have been the intention of 
 the legislature when it says you may leave out one i)lain- 
 tiff, and give judgment for the other, that it should mean 
 you may give judgment for one plaintiff, who might have 
 been prevented from maintaining the action if he had 
 been the sole plaintiff at first." {z) 
 
 In an action of ejectment, however, a trustee and a 
 cestui que trust who can not have the legal right in both 
 of them, can, as already pointed out, be joined as plaintilTs. 
 The judgment will be given in favor of the trustee, {a) 
 
 The misj(jinder of i)laintiffs in actions ex contractu 
 affects — 
 
 (»/) See antf. 
 
 (x) Hellingham v. Cl.nrk. I 15. & S. :i32. 
 
 ( y ) Stubs V. Stubs, 31 L. J. 510. Ex. 
 
 (») Stubs V. Stuljs, 31 L. J. 5t3, Ex.. juilyiiviu -.f I'.u \m\vki.i.. B. 
 
 (a) See attU.
 
 528 PARTIES TO ACTIONS. 
 
 1st. Set-off.— The defendant can prove his set-off by 
 showini^ that all the parties named as plaintiffs, e.g., A., 
 B., and C, are indebted to him, or by showing that the 
 plaintiff or plaintiffs who can establish their right to 
 maintain the action, e. g., A. and B., are indebted to 
 him. (/;) 
 
 2ndly. Second actiou. — No other action can be brought 
 against the defendant X. by any of the persons joined as 
 plaintiffs in a former action, e. g., by A. or B., &c., in 
 respect of the same cause of action, {c) 
 
 Amendment. — The mis-joinder of a plaintiff can be 
 amended by the Court, or a judge, either before or at the 
 trial, {d) 
 
 [506] Rule 116. — In an action on contract; 
 
 I. A non-joinder of defendants gives rise to 
 a plea in abatement ; 
 
 2. A mis-joinder of defendants is, unless amended, 
 fatal. 
 
 Non-joinder. — If an action is brought by A. against X., 
 which ought to have been brought against X. and Y., the 
 non-joinder of Y. can be pleaded in abatement; that is, 
 X. can object to Y.'s not being joined. But the non- 
 joinder of Y. is, if not pleaded in abatement, of no conse- 
 quence; for if X. is sued for a breach of contract, his 
 liability is proved by showing a contract made by X. and 
 Y. ((?) In other words, a contract by X. and Y. makes 
 them liable to be sued separately, subject to the right of 
 compelling the plaintiff by means of a plea in abatement 
 to join the co-contractor as co-defendant. 
 
 The difference between the effect of the non-joinder of 
 
 (3) C. L. P. Act, !.S6o, s. 20 
 
 (c) Ibid., s. 21. 
 
 {d) Ibid., 1852, ss. 34, 35. 
 
 [e\ Whelpdale's Case, 5 Coke, 119 a ; Richards v. Heatlier, i B. & Aid. 35 • 
 Rice V. Shute, i Smith, L. C, 6th ed. 511 ; Cabell v, Vaughan, i Wms Saird. 
 291 b, 2gi m.
 
 NON-JOINDER AND MIS-JOINDER. 529 
 
 plaintiffs and the non-joinder of defendants is clearly 
 established, but it is not easy to account for it satisfac- 
 torily. The ground, perhaps, is that if X. and Y. under- 
 take to pay ;£"20 to A., each gives A. a right against him, 
 and the contract can not fairly be considered to be an 
 agreement that the one of them will pay only on condition 
 that the other pays also. (/) 
 
 Amendmejit. — When the non-joinder is pleaded, the 
 plaintiff is at liberty, without any order, to amend the 
 writ and declaration, by adding the name of the person 
 named in such plea, and may serve the amended writ upon 
 the person so named, and proceed against the original 
 defendant and the person named in the plea, {g) 
 
 When the non-joinder is not pleaded, the error [507] 
 can not be amended. It is in general of no impor- 
 tance ; but if of consequence at all, is fatal. Thus, where 
 an action was brought against a husband alone for a debt 
 incurred by his wife before marriage, the husband was 
 held not liable, and it was further held that the Court had 
 no power to add the wife as defendant, (//) and it appears 
 clear that neither the court nor a judge have any power 
 to remedy the non-joinder of a defendant. 
 
 Misjoinder.— \{ X. and Y. are sued where X. alone is 
 liable, the error is fatal unless amended. If it appears 
 on the pleadings, it gives rise to a demurrer, &c. ; if it 
 appears at the trial, to an adverse verdict, &c. 
 
 Amendment. — The mis-joinder of a defendant can be 
 amended by the court or judge before or at the trial ; {i) 
 but will not be amended where the party wrongfully 
 joined is made a co-defendant on purpose to try his 
 liability. 
 
 (/) As to actions for torts founded on contract, see post. 
 
 Xf^) The Common Law Proce.lnrc y\ct. 1S52, ss. 3!?, 39, contains prorinons 
 lo secure that the defendant added be placed in as good a position lu if the 
 action had originally been commenced against him, and that the party wHoae 
 negligence or error causes the amendment shall in any case pay the coit 
 of it. 
 
 (A) Garrard v. Giubelci, II C. 15.. N. S. 616. 832; 31 L. J. 131. a?** 
 
 C. P. 
 
 («) C. L. P. Act. 1852, s. 37. 
 84
 
 530 PARTIES TO ACTIONS. 
 
 Rule i 17. — In an action for tort; 
 
 1. A non-joinder of plaintiffs gives rise to a plea 
 in abatement ; 
 
 2. A mis-joinder of plaintiffs leads only to increased 
 costs. 
 
 Non-Joinder. — In an action by A. for tort, which ought 
 to be brought by A. and B., the defendant can plead in 
 abatement the non-joinder of B,, or can give notice that 
 he objects to such non-joinder. If he does not do so, the 
 error is immaterial ; {k) for if the defendant does not 
 object to the non-joinder, he will be liable for such 
 [508] portion of the damages as was incurred by the 
 plaintiff alone, though not for more. (/) 
 
 Amendmetit. — The rule is the same as in an action on 
 contract. (;;/) 
 
 Mis-joinder. — The rule is the same as in an action on 
 contract, {ri) 
 
 Rule 118. — In an action for tort ; 
 
 1. A non-joinder of defendants is no error; 
 
 2. A mis-joinder of defendants leads only to 
 increased costs. 
 
 Non-joinder. — Each of several joint wrong-doers being 
 separately liable for the whole damage caused by the joint 
 wrong, it is no defense to X., when sued for a wrong, that 
 Y., who is jointly liable, has not been sued with him. {0) 
 
 Amendment. — The non-joinder of defendants can not be 
 amended, for it is not an error. 
 
 Mis-joinder — If X. and Y. are sued where X. alone 
 ought to be sued, Y. is entitled to a verdict and his 
 
 {k) Bullen, Pleadings, 3rd ed., 708. 
 
 (/) Sedgworth v. Overend, 7 T. R. 279 ; Bloxam v. Hubbard, 5 East, 407. 
 
 (/») See ante. (n) See a/idr. (o) See ante
 
 NON-yOINDER AND MIS-JOINDER. 531 
 
 costs ; but his being wrongly joined does not affect the 
 liability of X., the real wrong-doer. (/) 
 
 Amendment. — The plaintiff ma}' always remedy the 
 error before the trial, by entering a nol. pros, as to the 
 persons wrongly joined, i. e., by dropping the action against 
 them. The error can also be amended by the court or a 
 judge before or at the trial, in like manner as the same 
 error can be amended in an action on contract, {q) 
 
 Exception. — Actions for torts concerning real property. 
 
 " There is, it seems, a distinction between personal 
 actions of tort and such actions when they concern 
 real property. Therefore, if one tenant in common [509] 
 only be sued in trespass, trover, or case, for any 
 thing respecting the land held in common, he may plead 
 the tenancy in abatement." (r) 
 
 Torts foundeel on contract. — The answer to the question 
 whether an action brought in the form of an action ex 
 delicto, as regards the rules for joinder of parties, is to be 
 considered an action on contract or an action for tort, 
 depends not upon the form, but upon the real character 
 and substance of the particular action. Thus " where the 
 action is substantially and necessarily founded on contract, 
 the form of it in tort will not prevent the plaintiff being 
 non-suited for the non-joinder of other persons inter- 
 ested." is) But it must be borne in mind that, as already 
 pointed out, differences of opinion exist as to the true 
 character of certain actions. (/) 
 
 (;>) Govett V. Radnifl};e, 3 East, 62 ; Bretherton v. Wood, 3 B. & B. 54 , 
 Fozzi V. Shipton,8 A. & E. 963. 
 
 (7) See ante. 
 
 {r) Cabell v. Vaughan, I Wms. Saund. 291 g. 
 
 \s) Cabell v. Vaughan, l Wms. S.uin.i. 291 u : and 291 /, note ; Ansci; v. 
 ■ Waterhouse, 6 M. & .S. 385. 
 
 (/) See further. Bretherton v. Wood. 3 B. & B. 54 ; ''o"' v. Shipton. 8 A. 
 & E. 693 ; Govett v. Kadnidge. 3 East, 62 ; Anscll v. Waterhouse, 6 M. & S 
 385 ; Powell V. Layton, 3 B. i'^ P. 3^)5-
 
 532 PARTIES rO ACTIONS. 
 
 SCHEME AS TO JOINDER OF PARTIES^ 
 
 Actions on Contract. 
 
 a. riaintiffs. 
 
 1. Non-joinder. — Fatal unless amended. 
 
 2. Mis-joinder. — Leads only to increased costs. 
 
 b. Defend.mts. 
 
 r. Non-joinder. — Gives rise to a plea in abatement. 
 2, Mis-joinder. — Fatal unless amended. 
 
 Actions for Tort. 
 a. Plaintiffs. 
 
 1. Non-joinder. — Gives rise to a plea in abatemenL 
 
 2. Mis-joinder. — Leads only to increased costs. 
 
 h. Defendants. 
 
 I. Non-joinder. — Has no effect. 
 
 3. Mis.joinder. — Leads only to increased costs.
 
 INDEX. 
 
 [the references are to the marginal paging.] 
 
 Abatement. See Bankrutptcy. 
 
 Abatement, plea in. See Contract, Non-JOINDER. 
 
 Abjuration of realm. 
 
 when not returning from transportation amounts to, 172 
 Actions. See Chose in Action, Contract, Joinder, Tort. 
 
 may be brought by everyone not under a special disability, I 
 
 division of, 6 
 
 what constitutes cause of action, 6 
 
 on contract, or ex contractu, 8 
 
 for tort, or ex delicto, 9 
 
 distinction between actions on contract, and for tort, 6-22 
 
 some actions may be brought either on a contract or for tort, 16, 
 
 437 
 against attorneys or surgeons for vi'ant of skill, 16 
 against carriers, 16 
 against bailees, 16 
 for torts founded on contract, are in reality for breach of contract 
 
 20. 
 advantages and disadvantages of on suing on contract or for tort, 
 
 20, 21, 437, 438 
 are divided into " forms," 22 
 " forms" of action, 22 — 25 
 are divided into local and transitory actions, 25 
 
 difference between, 25, 26 
 are divided into actions for debt and damages, 26, n. {q) 
 can only be brought for Hie infringement of a right. 28 
 may be brought for any infringement of a legal right, 50 
 may i)e brought for causes arising out of the jurisdiction, 55 
 but such acti<ms must be transitory and not local, 55 
 may under certain circumstances be brought by aliens for wrong* 
 
 committed abroad, 55. 56 
 in interpreting contracts the courts follow the lex loci ; but in their 
 
 procedure the lex fori, S*^) 
 cmn not be brought for a public nuisance, 61 
 
 except by those who h.ave sustained particular damage, 
 
 61-64 
 nor for a wrong which amounts to a fchmy, 64
 
 5 34 INDEX. [ The references art 
 
 Actions — Coniin ued. 
 
 at any rate till the wrongdoer has been prosecuted, 
 
 64, 65 
 this rule does not apply to actions under Lord CAMPBELL'S 
 Act, 65, 406 
 the same person can not be plaintifT and defendant, 65 
 
 application of tiiis rule, 65, 66, 155 
 brought by a wrong plaintift", or against a wrong defendant, must fail, 
 
 499 
 Administrator. See Executors and Administrators. 
 Advertisement, 
 
 otTering a reward, 85, 86 
 Agent. .S>^ Principal and Agent. 
 Agister of cattle, 
 
 may maintain trover for claim against a stranger, 353 
 Alien, 
 
 may sue and be sued for wrongs committed abroad, 55 
 
 wh'ire such wrongs are actionable, both by the laws of 
 England and of the country where committed, 55-57 
 Alien enemy. See War. 
 
 who is, 3 
 
 can not sue without license from the Crown, 3, 4 
 
 disabilities of, 4 
 
 wife of, may be sued alone, 296 
 
 though she can not sue, 172, 296 
 Ambassador, 
 
 can not be sued, 5 
 Amendment. See Mis-joinder, Non-joinder. 
 
 non-joinder of plaintiffs can be amended either before or at the trial, 
 503, 508 
 
 so can their mis-joinder, 505, 508 
 
 also the mis-joinder of defendants, 507, 508 
 Animals, 
 
 who is liable for damage done by, 425-427 
 Apprentice, 
 
 indentures of apprenticeship discharged by adjudication in bankruptcy, 
 
 307 
 Assignee. See Bankruptcy, Chose in Action, Trustee. 
 
 or negotiable instrument may sue in his own name, 99, 117 
 Assignment. See Chose in Action. 
 
 rules as to, 99 
 Assignor. See Chose in Action. 
 Assumpsit, 
 
 action of, 24 
 Attorney, 
 
 actions against, for want of skill may be either on contract or for tort 
 16 
 
 Bailees, 
 
 actions against, may be brought either on contract or for toit, I6 
 may maintain trover for goods committed to them, 352, 353 
 whether they have actual possession, or the right to it, 353 
 how bailment may be terminated. 361-366
 
 lo marginal paging, i ' /Vx/iJA. JJJ 
 
 Bailiff. See Sheriff. 
 
 Bankruptcy. See Husband and Wife, Partners, Set-off. 
 
 the trustee now occupies the same position the assignee did, iSg. 
 
 n. (a) 
 on the bankruptcy of a firm, actions must be brought by the trustee or 
 
 trustees, 159, 3S6 
 on the bankruptcy of one or more partners, by the solvent partners, and 
 
 the trustees of the bankrupcty partner, 159, 3S6-38S 
 bankruptcy of one partner dissolves the firm, and makes the trustee 
 
 tenant, in connection with the solvent partner, of all tlie partnership 
 
 property, 160 
 semble, this doctrine does not altogether apply to unincorporated 
 
 companies, i6t 
 on bankruptcy of husband, his trustee must sue with the wife in 
 
 actions brought in her right, 187, 394, n. {c) 
 trustee must sue for the breach of any contract made with bank- 
 rupt before bankruptcy, in which he has both legal and beneficial 
 
 interest, 189 
 and the bankrupt himself can not sue, 191, ig2 
 the trustee may sometimes sue when the bankrupt could not, had he 
 
 remained solvent, 193 
 this is owing to the doctrine of relation, 193 
 the trustee can not sue where breach of contract injures the person or 
 
 feelings of the bankrupt, 193-195, 199 
 
 or for uncompleted contracts in which the personal service of the 
 bankrupt is of the essence of the contract, 195-197 
 though the damages recovered in such actions during the bankrupcty 
 
 would become his property, 195, 196, 400, n. (/) 
 either trustee or bankrupt may sue on contracts made during bank- 
 ruptcy, T98 
 except contracts to pay for the personal labor of the bankrupt per- 
 formed after bankruptcy, 199 
 set-off, 199-201 
 bankrupt must sue on contr.-icts made after close of bankruptcy, 
 
 201 
 when more than one trustee, all must join in suing, 202 
 on death or removal of trustee his rights pass to his sucessor, 203 
 but it does not cause an action to abate, 203 
 the bankruptcy of a plaintiff does not cause the action to abate, 
 
 203 
 if action wrongfully brought by trustee, or bankrupt, the eiror is (.ital, 
 
 204 
 a liquidation by arrangement may take place, 204, n. (<i) 
 in an action against joint debtors, a bankrupt debtor need not be 
 
 joined, 230, 231 
 on the bankruptcy of one or more partners, the solvent partner, or 
 
 partners, must be sued, 272 
 discharged l)ankrupt is not to be sued on contracts made before bank 
 
 ruptcy, 306 
 except for 
 
 debts not provjiblc by the Court, 308 
 
 debts contracted after notice of act of bankruptcy, 308 
 
 debts incurred l»y fraud, 308
 
 536 INDEX. \Refer,t^e^ art 
 
 Bankruptcy — Conlinucd. 
 
 debt whereof forbearance has been obtained liy fraud, 309 
 
 Crown debts, 309 
 
 bailbonds or debts for offenses against the revenue laws, 309 
 
 trustee may eitlier disclaim or adopt contracts relating to onerou» 
 
 property, 306 
 indentures of apprenticeship may be discharged, 307 
 undischarged bankrupt remains liable on previous contracts, 309 
 trustee can be sued on contracts entered by him as trustee, 310 
 but not for breaches of contract by the bankrupt, 272, 273, 311 
 trustee must sue for injuries to property of bankrupt committed before 
 
 bankruptcy, 395, 396 
 he can even sue in cases in which the bankrupt could not have sue-i, 
 
 396, 397 
 he can not sue for trespass to land before bankruptcy, 397 
 he may sue for injuries to property of bankrupt acquired uft&r bank 
 ruptcy, 398 
 but if he does not interfere the bankrupt may sue, 398 
 bankrupt alone can sue for injuries to his person, feeling, or reputa- 
 tion. 399, 400 
 unless such injury be in reality one to property, 400, 401 
 bankrupt can be sued both before and after his discharge, for tortr 
 430 
 and probably even if they were founded on contract, 480 
 Baron and feme. See Husband and Wife. 
 Bills and notes. See Principal and Agent. 
 
 holders of, may sue in their own names, 99, 117 
 agent making, drawing, &c., in his own name, must be sued on, 252 
 if a person accepts bills for himself and others without authority, he is 
 personally liable, 264 
 
 Carriage. See Master and Servant, Negligence. 
 Carriers. 
 
 actions against, may be either on contract or for tort, 16 
 
 actions against, on the custom are for tort, 19 
 
 who should be plaintiff in actions agai-.st, 86-90 
 
 may always be sued either jointly or severally, 233, n. (r) 
 
 who should sue in case of conversion by, 350, 351 
 
 may maintain trover against a stranger, 353 
 Case. 
 
 action on, 24 
 Chose in action. See Contract, Covenants running with the Land 
 Landlord and Tenant, Privity of Contract, Right. 
 
 definition of, 66, 67, 176-178 
 
 can not be assigned at law, 66, 99, 115 
 
 except by or to the king, 68 
 
 therefore assignee must sue in name of assignor, 68-72, 115 
 
 or if he be dead in that of his executor or administrator, I15 
 who is trustee for tlie assignee, 68, 69 
 
 the assignment is freely allowed in equity, 69 
 
 difference between real and nominal plaintiff, 69-72 
 
 the liability to be sued can not be assigned, 76, 234 
 
 except covenants whicli run with the land, 77, 119, 236
 
 U marginal paging^ INDEX, 537 
 
 Ohose in action — Continued. 
 
 and except the assignment of liabilities in consequence of 
 marriage, bankruptcy, or death, 77, 128 
 assignee of a negotiable instrument may sue iu his own name, gg, 117 
 the right to bring an action on a contract can not be transferred or 
 
 assigned, 115 
 though the interest in the contract may be transferred, 115 
 except contracts assignable by statute, 117 
 contracts assignable by custom, 117 
 assignment of a debt by agreement of all parties, 117 
 covenants which run with the land, iig 
 assignment by marriage, bankruptcy, and death, 128 
 of wife, does not become the property of husband till reduced into pos- 
 session, 175, 176 
 mode of reduction into possession, 178, I7g 
 the liability to an action on contract can not be assigned, 234 
 except 
 
 where there is a change of credit by an agreement between all 
 
 parties, 235 
 covenants between lessor and lessee which run with the land, 
 236, 237 
 right of action for a tort can not be assigned, 382 
 the liability to be sued for a tort can not be assigned, 43g 
 except sometimes in case of death, 439 
 Clubs. See Partners, Principal and Agent. 
 
 the liability of members of, is generally a question of fact, not of law, 
 
 249 
 the member of an ordinary subscription club is not liable for the price 
 of goods supplied to the steward according to the order of the com- 
 mittee, 249, 250 
 how far members of the committee are liable, 250, 251 
 Company. See Corporation, PARTNiiRS, Uninporporated Company. 
 Consideration. See Deed, Simple Contract. 
 is necessary to support a simple contract, 81 
 definition of, S2 
 the person from whom it moves, must sue on a simple contract, 8a, 
 
 83 
 
 and no one else, 78, 82-84 
 
 though the contrary doctrine was held formerly, 84 
 
 exceptions to this rule, 90-101 
 
 a bare promise can not be the foundation of an action, 99 
 
 is not requisite in a deed, loi 
 
 how to deci<le from wlioni it moves, 106-108 
 
 and whether it be separate or joint, 106-108 
 Consignee. See Carriers. 
 Consignor. See Carriers. 
 Constables. 
 
 are to a certain extent protected from actions, 429 
 Contract. See Action, Chose in Action, Consideration, Deed, Joinokr. 
 Privity of Contraci-, .Simple Conikact. 
 
 action (jn, 8 
 
 no stranger to, can sue or be sued on, 10, 37. 38 
 
 what is an implied, 13 ^
 
 538 INDEX. [Xe/eretuet arw 
 
 Contra ct — Con tin ued. 
 
 money had and received, 14 
 money paid, 15 
 actions for tort founded on contract are in reality actions for breach ol 
 
 contract, 20 
 effect of treating tort as breach of contract, 20 
 
 breach of contract as tort. 21, 437 
 every breach of is an injury, 53 
 is construed according to the lex loci, 56 
 
 though the mode of enforcing it is according to the lex fori, 56 
 no one can sue for breach of, who is not a party to it, 78 
 may be either a simple contract, or a specialty, 79 
 all persons with whom one is made must join in an action for the 
 
 breach, 104 
 can not be framed so as to give the promisees the right to sue upon 
 
 it both jointly and separately, no, ill 
 whether a contract is joint or several is a question of interpretation of 
 
 its terms, II2 
 if the words are ambiguous, it depends on whether the interests are 
 
 joint or several, 113 
 difference between a joint and several interest, 114 
 right of action on a contract made with several persons jointly passes to 
 
 the survivor, 128 
 no one can be sued on a contract who is not a party to it, 223, 370 
 
 though it be in the form of an action for tort, 370 
 the person to be sued on a simple contract is the person who promises, 
 225 
 »r who allows credit to be given to him, 226, 227 
 except, 
 
 persons appointed by statute to be sued, 228 
 actions quasi ex contractu, or implied contracts, 228 
 joint contractors must be sued jointly, 230 
 except, 
 
 where a co-contractor has become bankrupt, 231 
 
 where the claim is barred against one or more of the joint 
 
 debtors, 231 
 where a co-contractor is resident out of the jurisdiction, 232 
 in an Action against common carriers, 232 
 in an action against a firm where there are nominal or dormant 
 
 partners, 233 
 where a co-contractor is an infant, or a married woman, 233 
 the non-joinder of a joint debtor, is only matter for a plea in abatement, 
 
 230, 231 
 contractors may be at once jointly and severally liable on the same con- 
 tract, 233 
 Contractor. See Master and Servant 
 
 Contribution, 
 
 does not exist between wrongdoers, 431 
 
 this rule does not apply to a person made a wrongdoer by 
 inference of law only, 469 
 Oontributory negligence. See Negligence, Tort.
 
 to marginal paging.'] IN]Jh.X, Cjq 
 
 Corporation, 
 
 can sue and be sued, 2 
 mus: sue in its corporate name, 163 
 can not sue on a contract not under seal, 164 
 except contracts on matters incidental to its business, 165 
 or contracts relating to trivial matters, 167 
 or contracts executed on the part of the corporation, 1I7 
 or where there is a contract implied by law, i63 
 or contracts under the authority of a statute, 168 
 can not sue on contracts ultra vires, 169 
 
 when being wound up, liquidator sues in the name of the com- 
 pany, 169 
 set-off in such case, i6g, 170 
 the word " limited " must be used in all contracts by " limited " com- 
 panies, 259 
 or those signing them will be personally liable in default of pay- 
 ment 259 
 must be sued in its corporate name, 276 
 can not be sued on a contract not under seal, 277 
 except contracts on matters incidental to its business, 277 
 contracts relating to trivial matters, 277 
 some cases of implied contracts, 27S 
 contracts under the authority of statute, 278 
 individual members can not be sued directly for the debts of the 
 
 corporation, 276 
 except where a company under certain circumstances carries on its 
 
 business with an insufficient number of members, 277 
 can not be sued on contracts ultra vires, 278 
 actions against winding-up companies will be stayed, 280-282 
 may be sued for torts, 470 
 
 except for some wrongs of which it is manifestly incapable, 470 
 can it be sued for fraud ? 471-473 
 Costs. See Mis-joinder, Security for Costs. 
 Covenant. See Deed. 
 
 action on, 24 
 Covenants running Tvith the land, 
 may be assi^ncl, 77, 119 
 what they are, 119-12S 
 
 where there is no relation of lessor and lessee, 120 
 where there is such relation, 121 
 at common law, only bound and benefited the assignees of the lessee, 
 
 121 
 but now by statute 32 Hen. VIII. c. 34, they bind and benefit the 
 
 assignees of the lessor, 122 
 must be made with a covenantee wiio has an interest in the land to 
 
 which tbcy refer, 123 
 must concern, or "loucli" the land, 124 
 may be annexed to different estates in I.ind, 127 
 can not be annexed to an cquilnl>le estate, 128 
 must generally be sued on by the heir, and not llic executor, 213 
 made by a lessor, pass to the as'iignce of the reversion, 236 
 made by a lessee, pass to the assignee of the term, 236 
 on assij^nmcnt by lessor, he erases to be liable <>n, 236
 
 540 INDEX. IRe/erenres an 
 
 Covenants, Ac. — Contittued. 
 
 original lessee is liable on his express covenants, even after he has 
 assigned his term, 236 
 
 but only to lessor, not to assignee of reversion, 237 
 assignee of lessee is only responsible so long as he holds the estate, 237 
 
 Damage. See Debt, Injury, Libkl. Nuisance, Slander. 
 
 without injury will not support an action, 28 
 
 what damage is not injurious, 29 et seq. 
 
 every injury imports damage, 50 
 
 when necessary to give a right of action, 52, 61-64 
 
 a persiHi is not liable for damage which is the remote or indirect result 
 of his act, 410 
 
 arising from goods, owner is liable for, 425 
 
 but not when, without his fault, they pass out of his contiol, 425 
 
 when caused by animals, who liable for, 425-427 
 Damages, 
 
 every breach of contract gives a right to, even if only nominal, 53 
 Damnum. See Damage. 
 
 sine injuria, 28, 421. 
 Death. See Chose in Action, Executors and Administrators, Husband 
 
 AND Wife, Survivorship. 
 Debt, 
 
 action for, 23 
 
 difference between action for debt and action for damages, 26, n. (/) 
 Deed, 
 
 covenantee only, must sue for breach of, loi 
 
 is good without any consideration, loi 
 
 only parties to an indenture can sue on it, 102, 103 
 
 they can generally do so, whether they have executed it or 
 not, 102, 103, 105 
 
 persons who are not parties may sue on indentures made under 8 & 9 
 Vict. c. 106, — 194 
 
 can not be framed so as to give the covenantees the right to sue upon it 
 both jointly and separately, iii 
 
 though the covenantors may be both jointly and severally liable, II2, 233 
 
 there is a difference of opinion on this point, 114, n. {e) 
 
 person to be sued on, is the covenantor, 229 
 
 person not a party to an indenture may be sued on it, 330 
 if he has executed it, not otherwise, 230 
 
 agent contracting by, in his own name, must be sued, 252 
 Detinue, 
 
 action for, 24 
 Devisee. See Heir. 
 
 is liable where heir would be liable, 324 
 
 can not be sued jointly with executor, 324 
 
 can not sue for any wrong done to deceased, 408 
 Divorce. See Husband and Wife. 
 Driving. See Master akt> Servant, Negligence. 
 
 Ejectment. See Landlord and Tenant. 
 
 claimant must have legal right to enter and take possession, 484, 4S7, 488 
 form of writ, 486
 
 to marginal paging. \ INDEX. tA\ 
 
 Ejectment — Continued. 
 right of entry, 4S8 
 
 must exist from date mentioned in writ, 489, 490 
 plaintiff after entry, is remitted to his previous estate, 490, 491 
 who may bring ejectment, 491 
 
 all plaintiffs in whom title is alleged to be, should join, 492, 493 
 one co-owner can not bring ejectment against another, 493, 494 
 all tenants in possession should be joined in the writ, 486, 494, 495 
 if not joined they have a right to defend, 495-497 
 
 whether they are in possession by themselves or theii 
 tenants, 495-498 
 tenant served with writ, is bound to give his landlord notice, 497, 498 
 who may defend with him if tenant wishes to defend, 497 
 or without him if he does not, 498 
 trespass may afterwards be brought for mesne profits, 498, n. (^) 
 Equitable interest. See Chose in Action, Rights. 
 is not regarded in a court of law, 43 
 exceptions to this rule, 45 et seq. 
 
 assignee of chose in action must sue in name of assignor, 6S-72, 115 
 Equitable plea, 
 
 in what cases allowed, 45-48 
 set-off to, or from trustees, 46 
 
 only allowed, where Judgment will dispose of whole matter between 
 parties, 47, 48 
 Eqiutable replication See Limitations, Statute of. 
 when allowed, 48-50 
 
 will not be allowed when effect would be to permit an action to be 
 brought on a mere equitable right, 49, 50 
 Executors and Administrators. See Heir, Landlord and Tenant, Set- 
 off. 
 are not liable to an action at suit of legatee, 42 
 
 unless they admit they have received the money and hold it to 
 his use, 42 
 sue on all contracts made with the deceased, 205 
 whether broken in his lifetime or after his death, 205-207 
 except where breach of contract merely involved personal suffering to 
 deceased, 208 
 and contracts limited to the life of deceased, 209. 210 
 covenants real broken during life of deceased, 211, 213 
 on which the heir must .sue, 211, 212 
 except, 
 
 contracts on which deceased must have sued jointly with others 
 214 
 must sue for rent due before the death of the lessor, 213. 
 executors can commence action before probate, 214 
 but an administrator can not before the grant of letters of administra* 
 
 tion, 214 
 can carry on action on the death of the plaintiff, 215 
 must sue in reprcseniative char.ictcr on all contracts made with 
 
 deceased. 216 
 but cither in representative or personal ch.iractcr on contracts made 
 
 after (leccaseij's death. 2l6-2l3 
 •et-off in actions by. 218
 
 54- INDEX. {Reftremt^ ar* 
 
 Executors and Administrators— G';///mm^</. 
 
 can not join claims made in representative, with claims made in per- 
 sonal character, 218, 219 
 co-executors and co-administrators must all join, 219 
 except where contract is made with some of them only, 219, 220 
 
 where an executor renounces the executorship, 220 
 husband and wife must sue jointly where wife claims as executrix or 
 
 administratrix, 174, 179, iSo, 219 
 one executor or administrator can not sue another, 220 
 on the death of a co-executor or co-administrator, his rights of action 
 
 pass to the survivors, 221 
 the executor of a sole or surviving executor represents the original testa- 
 tor, 221 
 this rule does not apply to administrators, 221, 222 
 husband and wife must be sued jointly when claim is made against wife 
 
 as executrix or administratrix, 297 
 personal representatives may be sued on all contracts made by deceased, 
 
 313 
 except, 
 
 contracts limited to the lifetime of the deceased, 315 
 covenants in law, not broken during his lifetime, 315 
 contracts on which deceased must have been sued jointly with 
 others, 316 
 are not liable for torts, 314 
 
 though they may be in actions quasi ex contractu, 314 
 an action may be con.menced against an executor before probate, 316 
 but not against an administrator before the grant of letters of adminis- 
 tration, 316, 317 
 on the death of a defendant, the action may be carried on against his 
 
 representatives, 317 
 must be sued as executors on contracts of deceased, 317 
 must be sued as executors on contracts of decased, 
 
 but in personal character on contracts made by them- 
 selves, 318 
 unless made distinctly as executors, 321 
 set-oft", 319 
 
 liabilities under a lease, 320, 321 
 
 can not be sued at once in representative and in personal character, 322 
 co-executors must be sued jointly, 322, 323 
 when heirs and devisees are liable, 323, 324 
 executors can not be sued with an heir or devisee, 324 
 can sue for injuries to property of deceased during his lifetime, 
 402-404 
 
 Dr to his /^'.Tiswfl/ property after his death, 406-408 
 but they can not sue for injuries to his person, feelings, or reputation, 
 
 404 
 except where he was killed by negligence, 404-406 
 
 then they can sue for the benefit of certain relations named by 
 statute, 405 
 
 who may bring an action in their own names, if executors do 
 not sue within six months, 405 
 this action is maintainable, though the circums/ances under which the 
 death was caused amount lo felony, aof^
 
 to marginal taqmg.\ INDEX. r^a 
 
 Executors and Administrators — Continued. 
 
 can not be sued for torts committed by deceased, 48 1 
 
 except injuries to property within 3 & 4 Will. IV. c. 42, 
 
 481. 282 
 actions for dilapidations, 4S2 
 
 actions for tort in forms of actions on contract, 482, 483 
 when they should join in ejectment, 492, 493 
 
 False imprisonment. See Tort. 
 
 every person unjustifiably interfering with the liberty of another, is a 
 trespasser, 433 
 Pelon, can not sue in his own right, 2 
 
 but he may as executor, trustee, &c., 4 
 and he is liable to be sued, 4 
 Felony, 
 
 where wrong amounts to, no action lies, 64 
 
 at any rate till the felon has been prosecuted. 64, 65 
 this rule only applies to actions against the felon himself, 64 
 it does not apply to actions brought under Lord Campbell's Act, foi 
 compensating the families of those killed by accidents, 65, 406 
 Feme covert. See Married Women. 
 Finder of goods. .S>f Trover. 
 
 may maintain trover against anyone except the real owner, 354, 
 355 
 Foreigner. See Alien. 
 
 can sue and be sued for wrongs committed abroad, 55 
 
 where such wrongs are actionable both by the laws of England. 
 and of the country where committed, 55-57 
 Foreign law. See Lex Loci. 
 
 governs contracts made abroad, 56 
 is generally respected here, 57 
 
 except when in conflict with our laws on religion or morality, 57 
 Foreign sovereign, 
 can sue, I 
 
 but can not be sued, 5 
 Fraud. 
 
 where principal is liable for fraud of agent, 4.47-449 
 
 Heir. See Covenants running with the Land. 
 
 is the real representative of the deceased, as the executors and adminis- 
 
 trators are ])ersonal re])rcsentativcs, 205. 206 
 
 must sue on covenants real liroken during the lifetime of deceased 
 
 2:1 
 may be sued on certain contracts under seal. 323 
 on contracts of record, 323 
 on covenants real, 323, 324 
 can not be sued jointly with executor, 324 
 where heir is executor, separate actions may be brought against him in 
 
 each capacity, 324 
 can not sue for any wrong tlonc to deceased, 408 
 Huabanfl and Wife. See Chosk in Action. 
 
 wife can nut sue without her hu.sband, 171
 
 544 INDEX. [References an 
 
 Husband and Wife — Conii/nud. 
 except 
 
 where the husband is civilly dead, 172 
 
 or has abjured the realm, 172 
 or is legally ]")resumed to be dead, 172 
 where the wife has a "judicial separation" or "protection 
 order," 173 
 husband and wife can not sue each other, 174, 297 
 husband and wife must sue jointly 
 
 on contracts made by the wife before marriage, 174, 179 
 on contracts in which the wife claims as executrix or administra- 
 trix, 174, 179, 180 
 personal chattels in possession of wife generally become the absolute 
 
 property of the husband, 174 
 her choses in action only become his if and when he reduces them into 
 
 possession, 1 75-179 
 effect of death, 180, 184, 392, 394 
 
 of divorce, iSo, 181, 184, 392 
 set-off, iSi, 185 
 husband may sue either alone or jointly with his wife 
 
 on negotiable instruments given his wife before marriage, 181 
 on contracts made after marriage with his wife alone, 181, 182, 183 
 on contracts made after marriage with himself and wife, 181, 183 
 effect of error as to joinder of parties, 185-187, 394, n. [c) 
 when trustee of bankrupt husband should join with wife, 187, 394, 
 
 wife can not be sued alone, 296 
 except, 
 
 where the husband is civilly dead, 296 
 
 or is legally presumed to be dead, 296 
 where the wife has a "judicial separation" or " protectioi 
 
 order," 296 
 where the husband is an alien enemy, 296, 297 
 husband and wife must be sued jointly in two cases, 297 
 on contracts made by wife before marriage, 297 
 when a claim is made against the wife as executrix or adminis- 
 tratrix, 297 
 effect of death, 298, 303, 478 - . 
 
 divorce, 299, 304, 478, 479 
 set-off, 299 
 
 husband must be sued alone on contracts made by wife during cover- 
 ture, 299 
 authority of wife to bind her husband, 300 
 when living with him, 300, 301 
 when living apart from him, 301-303 
 
 what are necessaries for wife, 302, 303 
 effect of error as to joinder of parties, 304, 305 
 in tort husband and wife must sue jointly in three cases, 389 
 for injuries to wife before marriage, 389, 390 
 for personal injuries to wife during coverture, 390-392 
 for injuries for which wife must sue as executrix, 392 
 how husband can recover for damage caused to him by injary on 
 wife, 390-392
 
 to marginal paging^ IJMUJlA.. SAS 
 
 Husband and Wife — Continued. 
 
 husband may sue alone or with wife for injury to land of which both 
 
 are seized, 392, 393 
 except in case of permanent injury to wife's freehold, 393 
 
 when she must join, 393. 394 
 husband sues alone for injuries to personal property, 394 
 husband and wife must be sued jointly for torts committed by wife before 
 or after marriage, 439, 476 
 except torts founded on contract, 476 
 or fraud closely connected with contract, 476, 477 
 
 Idiot. 
 
 can sue and be sued, 2 
 Infant. Sfe Contract, Tort. 
 can sue and be sued, 2 
 when co-executor, must join in suing, 219 
 if joint contractor, the other contractors must alone be sued, 233, 294 
 
 295 
 can not be sued on a contract, 12, 283, 474 
 except contracts for necessaries, 284 
 
 and contracts in respect of permanent property, 290 
 what are necessaries, 285-290 
 
 father not liable for necessaries supplied to child, 291 
 how far liable in actions quasi ex contractu, 283, 284, 474 
 an adult can not be sued on contracts made daring infancy, 292 
 except contracts on which an infant might be sued, 292 
 
 contracts ratified in writing after full age, 292 
 contracts connected with permanent property and not repudiated, 293 
 
 294 
 may be sued for torts, 474 
 
 except torts founded on contract, 21, 474, 475 
 or fraud closely connected with contract, 475 
 Injuria. See Injury. 
 Injury, 
 
 what is, in a legal sense, 28 
 breach of contract always is, 53 
 Insolvency. See Bankruptcy. 
 
 Joinder. See Bankruptcy, Contract, Executors and Administrators, 
 Husband and Wife, Infant, Mis-joinder, Non-joinder, Part- 
 ners, Unincorporated Company. 
 all persons with whom a contract is made, should join in suing on it, 
 
 II, 104 
 otherwise in case of persons injured by a tort, li 
 all persons by whom a contract was made should be sued on it, II 
 when partners in a firm shouH join in suing on contracts luaJe with the 
 firm, 151-155 
 
 when on torts, 384, 38;) 
 where husband and wife should join, 17.^-180, 389-392 
 where trustee of bankrupt husband should join with wife, 187, 394 n. (e) 
 when more than one trustee in bankruptcy all must join in suing, 202 
 co-executors and co-arimiuistrators must join in suing, 219 
 except where a contract is made with some of them only, 219 
 85
 
 546 INDEX. [Referetiffs an 
 
 Joinder — Continued. 
 
 where an executor renounces the executorship, 220 
 joint contractors must be sued jointly, 230-233 
 co-executors must be sued jointly, 322, 323 
 
 in tort persons join in suing according to their interest, 380-382 
 one, any, or all of several joint wrong-doers may be sued, 430-435 
 the tort must be joint, 431 
 what w rongs can be joint, 432-435 
 torts founded on contract, 437 
 
 persons sued as joint-owners of land must be sued jointly, 438, 469 
 all claimants in whom title is alleged to be should join in ejectment, 
 
 492, 493 
 all tenants in possession should be joined, 494, 495 
 effect of mis-joinder and non-joinder, 499-509 
 Joint stock company. See Corporation. 
 Judge, 
 
 can not be sued for acts done in the execution of his office, 427-429 
 Judgment, 
 
 action may be brought on, 16 
 
 recovered against one of several wrong-doers, when bar to action against 
 others, 436, 437 
 Jurisdiction, 
 
 a person may have a cause of action for matters arising out of, 55 
 such action must be transitory and not local, 55 
 
 if one joint-contractor is resident out of, the others may be sued alone, 
 232 
 Jus tertii. See Trover. 
 
 can not be set up by a wrong-doer, 356 
 
 unless plaintiff relies not on actual possession but on his right to posses- 
 sion, 357 
 Justice of the peace. See Magistrate. 
 
 King. See Sovereign. 
 
 Land. See Covenants running w^ith the Land, Ejectment, Landlord 
 AND Tenant, Nuisance. 
 who is liable for injuries to, 417, 418 
 
 for nuisance on, 422-425 
 owners o(, must be sued jointly for injuries arising from, 438 
 Landlord and tenant. See Covenants running with the Land. 
 
 rent due before the lessor's death must be sued for by the executor, 213 
 
 but rent due afterwards by the reversioner, 213 
 
 executor's liabilities under a lease, 320, 321 
 
 landlord and tenant may each sue for damage done to their respective 
 
 interests in the property, 329, 343 
 trespass must be brought by tenant in possession and not by landlord, 
 
 339 
 but reversioner must sue for permanent injury to the land, 340 
 what constitutes permanent injury, 34 -344 
 
 it generally also interferes with the rights of the 
 tenant, 343, 344 
 where landlord responsiljle for nuisance on land, 422, 423 
 where tenant, 424
 
 to marginal paging^ INDEX. 547 
 
 Lemdlord and Tenant — Contiinied. 
 
 landlord is entitled to defend in ejectment whether named in writ or 
 not, 495-498 
 
 tenant served with writ in ejectment, is bound to give his landlord 
 notice, 497 
 Ijegacy. See Executors and Administrators. 
 Legatee. See Executors and Administrators. 
 
 w hen he can maintain an action against an executor, 42 
 Lex fori. See Limitations, Statute of. 
 
 governs the procedure in actions on contracts made abroad, 56 
 
 conflict between lex loci and, 58 
 Lex loci. See Foreign Law. 
 
 is followed in interpreting contracts made abroad, 56 
 
 and generally in deciding whether a tort has been committed, 57-61 
 
 conflict between lex fori and, 58 
 Libel, 
 
 is not actionable if true, 30, 31 
 nor if privileged, 31 
 
 is actionable whether it causes damage or not, 54 
 
 every separate person who publishes, is liable, 415 
 
 corporation may be guilty of, 470 
 Xiimitations, Statute of, 
 
 to plea of. there can not be an equitable replication, of fraudulent con. 
 cealment of trespasses till within six years, 49 
 
 effect of, in contract made abroad, 57 
 
 if claim .ngainst one or more joint debtors is barred by, the others should 
 be sued alone, 231, 232 
 " Limited " Company, i'^i- Corporation, Principal and Agent. 
 Liquidator. See Corporation. 
 Local action. See .-\ctions, Jurisdictio.n. 
 Lord Campbell'.s act. See Executors and Administrators. 
 
 (9 I.V 10 Vict. c. 93), for compensating the families of deceased persom 
 killed by negligence, 404-406 
 Lunatic, 
 
 can sue and be sued, 2 
 
 Magistrate, 
 
 is to a certain extent protected from actions, 429 
 Marriage. See IIushand and Wife. 
 
 Married Woman. See Contkact, Husband and Wife, Tort. 
 can sue or be sued. 2 
 
 is not li.ible for contracts made during coverture. 13 
 but is lial)le for torts committed then, 12, 476 
 
 except forts (funded on contract. 21, 476 
 if joint contractor, the other contractors must alone be sued, 233 
 Master and Servant. See I'kincii'AL and Ac.ent. 
 
 master can not sue railway com|»any for damage done to his servant 
 
 while a passenger, id 
 if master employs servant to buy goods on credit, he must p.iy for all 
 
 he buys, 244 
 a horsc-dcnler is bound if his servant warrants a horse without author 
 
 ity. 245
 
 548 INDEX. \ReftreTues art 
 
 Master and Servant — Cotitinued. 
 
 but not anybody else, unless he sends his servant to sell it at a 
 fair or mart, 245, 246 
 master may sue for injury to servant if it causes loss of service, 326, 331 
 
 and not otherwise. 326-329, 331 
 he may sue for the seduction of his female servant, 327-329 
 servant's occupation of land in possession of master, 335 
 goods in custody of mere servant are in master's possession, not ser- 
 vant's, 358 
 master can never sue for what is a mere injury to his servant, 383 
 nor servant for mere injury to his master, 383 
 
 master is liable for wrongful act of servant if necessary consequence of 
 obeying his master's orders, 442 
 or for his negligence in obeying them, 443, 446 
 or for an act committed in the usual course of employment, 443, 
 
 445 
 whether he has given him express authority or not, 447 
 and whether he has appointed the servant directly or indirectly, 
 
 449 
 owner and not hirer of carriage is master of the servant driving it, 
 
 450 
 and is therefore liable for his negligence, 450 
 the test is by whom can the servant be dismissed? not by whom is he 
 
 paid ? 450 
 employer of contractor not liable for contractor's servants, 450, 451 
 unless he personally interferes, 451 
 or the act to be done is unlawful in itself, 451, 452 
 or the damage arises from the act itself, 452, 453 
 or unless employer himself be bound to do the act, 453, 454 
 what acts are done in the course of employment, 455-458 
 
 cases of negligent driving, 455-457 
 master is responsible for servant's mistake of fact, 458 
 but not for his mistake of law, 458, 459 
 nor where servant injures a fellow servant, 459-461 
 nor where he is compelled to employ a particular person, 461 
 
 such as a pilot, 461 
 nor where the master is a public officer, 462 
 
 but this rule does not apply to trustees or corporations 
 appointed for the gratuitous performance of public 
 works, 462 
 servant is liable for acts of misfeasance, 463, 46 ^ 
 but not for acts of nonfeasance, 463, 465 
 Mesne profits, 
 
 action of trespass for, 498, n. {q) 
 Mla-joinder. See Husband and Wife, Joinder, Non-joinder, Partners 
 of plaintiffs effect of, — 
 
 in contract, 502, 503, 509 
 
 leads only to increased costs, 502, 503, 509 
 in tort, — 
 
 leadii only to increased costs, 507, 509 
 of defendants, effect of. — 
 
 in contract. 12, 506. 509 
 
 is fatal unless amended, 506, 509
 
 to marginal paging.] INDEX. 549 
 
 Mis-joinder — Continued. 
 
 in tort. 12, 50S, 509 
 leads only to increased costs, 508 509 
 Money had and received. See Contract. 
 what this action is, 14 
 may be brought by a person whose goods have been wrongfully sold, 20 
 when it lies against trustee, 42 
 
 executor, 42 
 grounds on which it lies, gl-ioi 
 is sometimes independent of contract, 9I, 93 
 sometimes dependent on it, 92, 94 
 what is consideration for, 94, et seq. 
 when it lies against agent, 257-259 
 Money paid, 
 
 what this action is, 15, 16 
 
 Negligence. See Master and Servant. 
 
 actions for, against attorneys, surgeons, &c., for want of skill may be 
 brought either on the contract or for tort, 16 
 also against carriers and bailees, 16 
 no action for, lies where plaintiff has been guilty of contributory negli- 
 gence, 75, 412, 413, 415 
 includes actions for tort and breach of contract, 368-380 
 who liable for negligent driving, 441, 442, 456-458 
 Necessaries. See Husband and Wife, Infant, Parent and Child. 
 Non-joinder. See Husband and Wife, Joinder, Misjoinder, Partners. 
 of plaintiffs, effect of, 11 
 
 in contract, 11, 502, 509 
 
 is fatal if not amended. 502, 509 
 in tort, II, 507. 509 
 
 only gives rise to a plea of abatement, 507. 509 
 of defendants, effect of, 11, 12 
 in contract, il, 506, 509 
 
 only gives rise to a plea of abatement, 230, 506, 509 
 in tort, 12. 508, 509 
 
 is no error, 508, 509 
 Nuisance, 
 
 if public is indictable, 61 
 
 therefore no action lies, except at the suit of one who has sus- 
 tained damage from it over what is common to others, 61 
 what is such particular damage, 61-64 
 every person who creates or continues a nuisance is liable, 422 
 where landlord responsible fornuisance on tenant's land, 432, 423 
 where vendor of land, 423, 424 
 where tenant or occupier. 424 
 
 Outlaw, 
 
 can not come into court except to reverse his outl.iwry. 3 
 
 therefore he can not sue, 3 
 
 but he is liable to he sued, 4 
 Owner. 5^<f Animals, Damace, Land, Tort, Trover. 
 
 Parent and child, 
 
 fath'-r is not liable for goods supplic<l to infant son, 3()l
 
 550 INDEX. {References an 
 
 Parent and Child — CoutititieJ. 
 
 though sliglit evidence of his having authorized the supply is sufficient, 
 
 292 
 parent may sue for injury to his child, 327 
 but only if he has lost his services thereby, 327 
 may sue for seduction of his daughter, 327-329 
 very slight evidence of loss of service is sufficient, 327-329 
 Pju-tners. J)*"*- Joinder. UNiNCOKroKATED Company. 
 
 a firm, as distinct from its members, has no legal existence, 148 
 therefore a firm or unincorporated company must sue and be sued in the 
 names of its individual members, 148, 266 
 however numerous they may be, 149 
 every partner qua his fellow partners is both principal and agent, 149, 
 
 153, 266 et seq. 
 all partners in the firm at the time a contract is made should join in 
 
 suing for the breach of it, 151 
 therefore a retired partner must always join in suing on a contract 
 
 made while he was a member of the firm, 153 
 a dormant partner always tnay, but never need, join in an action, 151 
 a nominal partner sometimes must, and sometimes need not join, 151 
 
 he must join if the contract be made expressly with him and the 
 
 real partners, 151 
 semble he need not, if it be clearly shown he is merely nominal, 
 
 152 
 if it be doubtful whether he must join or not, it is safer for him 
 to do so, 152 
 a partner can not join in suing on a contract made before he joined the 
 firm, 152 
 unless the debtor has either expressly or impliedly contracted to 
 pay the new firm, 152, 153 
 a debt due from one partner can not be set off against debts due to the 
 
 firm, 154 
 nor can debts from the firm, against debts due to one partner, 154 
 
 exceptions to this principle, 154, 155 
 one partner can not sue anoiher on any matter involving partnership 
 
 accounts, 155 
 this rule does not apply to actions on matters unconnected with part- 
 nership business, 157 
 nor to persons who are not actually partners, 157 
 thus actions may be brought on agreements for partnership, 157 
 parties may bring actions on separate agreements or covenants, 157 
 or for breach of ccjntract to furnish capital, 158 
 or for a balance struck after a statement of account, 158 
 or for matters only connected with partnership business, though the 
 
 wrongful act of a partner, 159 
 on the bankruptcy of a firm, actions must be brought by the trustee of 
 
 the bankrupt. 159 
 on the bankruptcy of one or more partners, by the solvent partners, 
 
 together with the trustee of the bankrupt partners, 159 
 and they may sometimes bring an action where the firm could not, 160 
 the bankruptcy of one partner dissolves the firm, and mnkes the trustee 
 tenant in common with the solvent partners of all the partnership 
 property, 160
 
 U>mar^nalpasins:\ INDEX. 55 » 
 
 Partners — Continued. -r .v 
 
 under certain conditions the trustee may use their names, if they are 
 
 unwilling to sue, i6o 
 or they may use his, on indemnifying hnn. l6l ,. ■ ■ . 
 
 in actions against, dormant or nominal partners need not be joined, 
 
 233 
 though it is best to join them. 233 ^ , • , , cK«..ih 
 
 all per,ons who were partners at the time of making a contract should 
 
 be joined as defendants in an action for the breach of it. 266 
 a dormant partner always may be joined. 268 
 
 but never need, 263, 269 
 a nominal partner always may be joined. 269 270 
 
 by any one to whom he has appeared as partner. 270 
 a partner can not be sued on contracts made before he joined the firm. 
 
 a r'etir'ed'partner may be sued on contracts made while he belonged to 
 
 onl^'partTe; may be sued alone in cases where an agent might be sued 
 
 instead of a principal, 271 
 set-off in actions against partners. 271. 272 
 in bankruptcy of, no action lies against trustee, 272 
 on bankrJJ^t 'y of one or more partners, the solvent partner or partners 
 
 should be sued, 272 
 on the death of partners, survivors must be sued. 274. 275 
 all must sue jointly for a wrong done to the firm. 384 
 thorwho wire partners at the time the wrong was done must sue for 
 
 how far one partner can sue another for tort 385. 3S6 
 
 who should sue for tort on the bankruptcy of the fi-"-- 3S6- f ^ 
 
 all or any of the partners may be sued for a wrong committed by the 
 
 except' where partners are sued as co-owners of land. 433, 439. 
 
 469 
 when they should join in ejectment. 492. 493 
 
 ^"^"^ owner of vessel is not liable for damage caused by. 461 
 PoUce Officers. See Constables. 
 
 rH:::;S°aJ'Age»;:''irM;sTB. .^n ........ .•.k..-«s, ««,.■... 
 
 "principal mu». su. on contract made with hint tl.rous'. -" »SC">- 'JO 
 if made by his authority. 130 
 or subsequently ratified, 130-133 
 the agent can not sue, 133 
 
 ""*"' where he is contracted with by deed in his own name. 134 
 where he is name.l as a party to a bill of exchange 134 
 :l;ercthcrightt„sueon the contract is by its terms expressly 
 
 restricted to him. 135 ,. ,, ,. 
 
 where the contract is made with the aRent himself. 13'' 
 where he is the ostensible principal. 138 
 Tr Xre he has made a .imple .on.i.nct in h. o«n name for an 
 
 undisclosed principal. I *8 
 
 TION.
 
 552 INDEX. IR.ferrnces arp 
 
 Print>*»*l and Agent — Contiuuid. 
 
 where lie has made a contract in the subject-matter of which he 
 
 has a special interest i)r property, 139 
 where he has paid away his principal's money under circumstances 
 which give him a riglit to recover it back. 140 
 Jie agent's right to sue is subject to the principal's right of interposition. 
 140 
 this doctrine only applies where the agent is a mere representa- 
 tive, 141 
 if an undisclosed principal sue, the defendant may set up any 
 defense which would be available against the agent, 141 
 when an agent sues in his own name, defendant may avail himself of 
 defenses good against the agent, and also of those good against the 
 principal, 142 
 how this doctrine applies to set-off, 142, 143 
 if a person really contracts for himself, but apparently for an unnamed 
 
 principp.l, he can sue as principal, 143, 144 
 otherwise, if he gives the name of another person, 144-147 
 every partner qua his fellow-partners is both principal and agent, 149, 
 
 153, 266 et seq. 
 principal must be sued on contracts made by him through an agent, 23^ 
 principal is bound by all acts of agent within the scope of his authority 
 
 239 
 whether such authority be express or implied, 240 
 and whether the act of agent be authorized at the time, or subsequentlj 
 
 ratified, 239, 247 
 what is e-xpress autliority, 240 
 what implied, 240-242 
 incidents of implied authority, 242-247 
 
 when principal bound, after revocation of agent's authority, 242 
 agent's authority can not be limited qua third persons, by private orders 
 unknown to them, 242 
 otherwise, if third parties know the agent has private instructions, 
 243 
 authority of some kind is necessary, 247 
 as no one can make himself agent against the will of his principal, 
 
 247-249 
 liability of members of clubs, 249-251 
 
 of volunteers for goods supplied to their corps, 231, 251 
 agent, acting as such can not be sued, 251 
 except, 
 
 where he contracts by deed in his own name, 252 
 
 where he draws or accepts a bill in his own name, 252 
 
 ■"here credit is given exclusively to him, 253 
 
 where he contracts for persons incapable of contracting, 254 
 
 where he is treated as an actual party to ilic ^.ontract, 254 
 
 where he contracts (not under seal) for an undisclosed principal, 
 
 256 
 where money has been paid to him under mistake, or obtained 
 
 by tort, 257 
 where he has signed contracts for a " limited" company without 
 using the word limited, 259 
 where agent onlv must be sued, 252-254
 
 to marginal paging:] INDEX. 553 
 
 Principal and Agent — Continued. 
 
 where either principal or agent may be sued. 254-262 
 
 limitations to this right of choice, 260-262 
 agent who contracts without authority can not be sued on the contract, 
 262 
 but he will be liable in damages for having represented that he had 
 authority, 263, 264 
 except in cases where his authority has expired without his 
 knowledge, 264, 265 
 if agent accepts bills without authority for himself and others he u 
 
 liable personally on the bill, 264 
 principal can never sue for mere injury to agent, 383 
 nor agent for mere injury to principal, 3S3 
 principal is liable for torts committed by his command, 441 
 or afterwards ratified by him, 444, 445 
 
 is liable for torts of agent in the usual course of his employment, 443 
 when liable for fraud of agent, 447-449 
 how far employers of contractors are liable, 450-454 
 agent is liable to third persons for acts of misfeasance, 463 
 
 but not for nonfeasance, 463, 465 
 can principal and agent be jointly sued, 465, 466 
 
 action may be brought against principal or immediate actor in th« 
 wrong but not against an intermediate agent, 466 
 except in the case of master of ships, 467 
 Privileged communications. See Ltbel, Slander. 
 Privity of contract. See Choss, in Action, Contract, Right. 
 what it is, 10 
 
 must exist to support an action on a contract, 10 
 how it applies to actions for tort founded on contract, 16 et seq., 370- 
 
 380 
 effect of want of, iS, 37, 38 
 no one can sue for the breach of a contract who is not a party to it, 78 
 
 though he may suffer damage from the breach, 79, 84 et seq. 
 early decisions to the contrary are now overruled, 84 
 this rule applies to torts founded on contract, i8. 370 et seq. 
 exceptions to the general rule, 90 et seq. 
 
 actions by a person appoinlcd by statute to sue for others, 90 
 actions which may be brought cither by principal or agent, 90, 9I 
 some actions for money had and received, 91 et seq. 
 Protected persons. .SVi* Constakles., Judges, Magistrates. 
 
 some persons are to a certain extent protected from actions. 427-430 
 
 Queen. St-e Sovereign. 
 Queen consort, 
 
 can sue and be sued as a feme sole, I 
 
 Railway companies, 
 
 can not be sued by master for d.image done to servant while passenger 
 
 18 
 how far actions against, for injuring passengers, are on contraot or for 
 
 tort, 18, 19 
 Ratification. See Infant. Principal and Agent. 
 of a contract has a retrospective- effect, 131
 
 554 INDEX. \Refentua aft 
 
 Ratification— Ccntinudi. 
 
 may take place after action brought, 131 
 
 can only take place where the contract was professedly made on behali 
 
 of plaintiti', 132 
 a contract can not be ratified by a person not in existence when it wa» 
 
 made, 132 
 it must be ratified wholly, if at all, 133 
 the ratification must not put the defendant in a worse position than ho 
 
 was at the time, 133 
 these rules apply to defendants as well as to plaintiffs, 247 
 by adult, of contract made when an infant, 292, 293 
 of torts, effect of, 444, 445 
 Release, 
 
 any one of co-plaintiffs may release an action, 108 
 nor can this release be set aside except in cases of fraud, 108-IIO 
 Remoteness. See Damage, Tort. 
 
 no one is liable for the remote and indirect result of his act, 410 
 unless there has been no intermediate cause, 411, 414 
 Rent. See LANDLORD and Tenant. 
 Replevin, 
 
 action for, 25 
 Reversioner. See Heir, Landlord and Tenant, Tort. 
 
 may sue for permanent injury to the land, 340 et seq. 
 Right. See Chose in Action, Equitable Interest, Privity of Cx>» 
 tract. 
 no action can be brought except for the infringement of, 28 
 of landowner, 31 
 
 to support from adjacent land, 33 
 to water, 34 
 the right for which an action can be brought must be a common Sum 
 
 one, 41 
 and not an equitable one, 43 
 
 every infringement of a legal right is actionable, 50 
 whether accompanied by damage or not, 50 
 of action not assignable, 66 
 
 no person can be sued who has not infringed upon the right in (espect 
 of which the action is brought, 73 
 application of this rule to actions of contract, 73 
 
 of tort, 75 
 every person can be sued who infringes upon the right of another, 76 
 
 Sale of goods, 
 
 where the property passes, 348-350 
 
 Security for costs. See Partners. 
 
 may be claimed from real plaintiff by nominal plaintiff, 72 
 
 may be claimed by defendant from nominal plaintiff when insolvent, 1% 
 
 may be obtained by a co-plaintiff, whose name is used without permis- 
 
 sion, 108 
 may be obtained by a husband, when his wife sues as executrix in her 
 own name and in his without his authority, 171 
 
 Seduction. See Master and Servant, Parent and Child. 
 
 Set-oflf. See Equitable Plea, Partners, Principal and Agent, TrustM, 
 in case of trustee, 46, 47
 
 to marginal paging^ IJSUrLJi., 555 
 
 8et-oflf — Con tin ued. 
 
 in case of principal and agent, 142, 143 
 
 a debt duerfrora one partner can not be set off against debts due to the 
 
 finn, 154 
 nor debts from the firm against debts due to one partner, 154 
 exceptions to this principle, 154, 155 
 
 when debts from a company can be set off in an action for calls, 
 169 
 when not, 170 
 in actions by husband and wife for debts claimed by both, debts due 
 from wife before marriage may be set off, 181-185 
 but not debts due from him only, 1S5 
 where husband sues in his own name only, debts due from him can be 
 set off, 185 
 but not debts contracted by his wife before marriage, 185 
 in bankruptcy, debts can be set off as in an ordinary action, 100 
 mutual credits can be set off, 200 
 all debts and demands which are provable against the 
 
 bankrupt's estate, 201 
 notice of an act of bankruptcy terminates the right of set 
 
 off, 201 
 demands in respect of which set off is claimed, must be 
 strictly in the same right, 201 
 in actions by executors or administrators, 
 
 for debts due to deceased, defendant can set off debts 
 due from deceased, but not debts due from execu- 
 tors, 218 
 for debts due to them as executors, defendant can not 
 
 set off debts due from deceased. 2i5 
 in their own name defendant can not set off debts due 
 to him from deceased, but can set off debts due from 
 plaintiff, 218 
 in actions against partners, 
 
 debts due to one partner can not be set off against 
 
 debts due from the firm, 271 
 nor debts due to the firm against debts due from 
 one partner, 272 
 except in some cases of survivorship, 272 
 in action against husband and wife. 2gq 
 
 executors or administrators, 319 
 Shei-ifif, 
 
 liability of, 433-435 
 when liable for acts of bailiff, 435 
 Ship. See Pilot. 
 
 BImple contract. S,-e Contract, Considf.ration. Privity op Contract. 
 is 3 contract not under seal or of record. 79 
 may be either written or parol, 79 
 
 person to sue for breach of, is the person with whom the contract must 
 be considered to be made. 80 
 that is the person from whom the consideration for the promise moTe*. 
 
 81 
 except, 
 
 actions by persons empowered to sue by statute, 90
 
 55^ INDEX. \Referentes sn 
 
 Simple Contract — Continued. 
 
 actions brouglit by an agent, 90, gi 
 some actions for money had and received, gi-xbt 
 is not made by a mere promise, there must be a consideration, 81 
 all persons with whom it is made must join in an action for the breach 
 
 of, 104 
 how to determine with whom a contract is made, 105-108 
 can not be framed so as to give the promisees the right to sue upo* »* 
 
 both jointly and separately, in 
 corporations can not sue on, 164 
 
 exceptions to this rule, 165-169 
 person to sue for breach of, is person who promises 225 
 Slander, 
 
 is not actionable if true, 30, 31 
 
 norif privileged, 31 
 
 nor (sometimes) without special damage, 54 
 the original utterer and the repeater are each liable, 415-417 
 the utterer is not liable for a spontaneous and unauthorised repetition, 
 ai6, 417 
 Sovereign. See Foreign Sovereign. 
 
 can sue, i ' 
 
 but not be sued, 5 
 
 can sue in his own name on a chose in action if assigned to him, 68 
 Statute of Limitations. See Limitations, Statute of. 
 Surgeons, 
 
 actions against, for want of skill may be either on contract or for 
 tort, 16 
 Survivorship, 
 
 the right of action on a contract, made with several persons jointly, 
 passes to the survivors, and on the death of the last, to his represen- 
 tatives, 128 
 except covenants with tenants in common, 128 
 in case of husband and wife, 180, 184 
 on the death of a co-executor, or co-administrator, his rights of action 
 
 pass to the survivors, 221 
 the liability to an action on a contract, made by several persons jointly, 
 passes to the survivors, and on the death of the last, to his represen- 
 tatives, 237, 238 
 how it affects the doctrine of set-off in the case of partners, 272 
 on the death of partners, the survivors, and ultimately the last survivor, 
 
 must be sued, 274 
 semble, this rule applies to unincorporated co.npanies not empowered 
 
 to sue by public officer, 275 
 on death of one of the parties jointly wronged the right of action passes 
 
 to the survivors, 382 
 and on the death of the last (if the right of action survives) to his rep- 
 resentatives, 382 
 the joint liability of several wrongdoers passes on the death of each to 
 the survivors, 439 
 Tort. See Actions, Felony, Foreign Law, Lex Loci, Trespass, 
 Trover. 
 action for, g 
 any person mimed, directly or indirectly, by, may sue, 10
 
 to marginal paging.-\ INDEX. 557 
 
 Tort — Continued. 
 
 some actions for, may be brought for a breach of duty arising from a 
 
 contract, x6, 437 
 semble, such actions are really actions on contract, 20 
 effect of treating tort as a breach of contract, 20 
 
 of treating breach of contract as tort, 21, 437 
 treatincr breach of contract as turt can not make an infant, or married 
 
 woman, liable, 21, 474 
 committed abroad may be sued on here, 55-57. 
 
 if a tort according to English law, and the law of the place 
 
 where committed, 55~6x 
 action for, does not lie when the wrong done amounts to a felony, 64 
 
 where this rule does not apply. 64, 65, 406. 
 no one can sue for an injury not an injury to himself, 325 
 the exceptions to this rule are apparent, not real, 325 
 thus master does not sue for injury to servant, but for loss of service, 326 
 so with parent and child, 327 
 
 therefore servant and child may sue also, 326, 327 
 action for seduction is on the same principle, 327-329 
 husband may sue for damages caused to him by injury inflicted on his 
 
 wife, 390-392 
 landlord and tenant may each sue for damages done to their respective 
 
 interests in the property, 329 
 any person who sustains an injury can sue for it, 330 
 
 whether injury to person. 330 
 
 character, 331 
 or property, 331, 332 
 the person in possession of land can sue for interference with his pos 
 
 session, 333 
 occupation of servant is possession of master, 335 
 trespass can not be brought wthout possession, 335 
 mere occupation is not possession, 336, 337 
 mere right to possession will not support trespass, 337. 333 
 trespass must be brought by tenant in possession, and not by landlord 
 
 339 
 but reversioner must sue for permanent injury to land, 210 
 
 what constitutes permanent injury, 340-344. 
 
 injury to personal property, 344, 345 
 
 any one may sue for interference with the possession of goods who (as 
 
 against the defendant) has a right to such possession, 345-347. 353 
 and no one else, 345, 359 ^ . . 
 
 a person entitled to a reversionary interest in goods may sue for injury 
 
 to his interest, 367 
 actions for tort founded on contract, 370 
 
 how far they can be brought by strangers to tlie con- 
 tract, 370, 380 
 persons who have a separate interest, and sustain sep-xrate damage. 
 
 must sue separately, 80, 381 
 persons who have separate interest, but sustain joint damage, may. 
 
 sue either jointly or separately. 380, 381 
 persons who have a joint interest must sue jointly for an injury to it 
 
 380-382 
 right of .iction f.r a tort can not be assigned, 382
 
 558 INDEX, [References art 
 
 Tort — ContintifJ. 
 
 on death of one of the parties jointly wronged, right of action passes to 
 
 survivors, 3S2 
 no one is liable for an injury of wlijch he is not the cause, 410 
 nor for the romote and indirect results of his acts, 410 
 nor if the damage is partly occasioned by the negligence of the 
 person injured, 75, 412, 415 • 
 
 any person who causes an injury to another is liable to be sued by him, 413 
 a person is liable f<)r the mode in which he uses his land or his goods, 
 
 421-425 
 how fai owner liable for damage done by animals, 425-427 
 persons in certain positions protected, 427-430 
 
 one, any, or all, of several joint wrong-doers may be sued, 430-435 
 there is no contribution between wrong-doers, 431 
 what torts can be joint, 432-435 
 false imprisonment, 433 
 error in foundation of process, 433, 434 
 irregularity in form, 434 
 error in execution, 434, 435 
 what torts can not be joint, 436 
 effect of judgment recovered, 436, 437 
 the liability to be sued for tort is not assignable, 439 
 except assignment by death, 439 
 each wrong-doer's separate liability (if it survives at all) passes at his 
 
 death to his personal representatives, 439 
 the joint liability of several wrong-doers passes on the death of each to 
 
 the survivors, 439 
 all persons concerned in a wrong are liable to be charged as principals, 
 
 463. 464 
 an action may be brought against the principal Or immediate actor in 
 the wrong, but not against an intermediate agent, 466 
 Transitory Action. See Actions, Jurisdiction. 
 
 Trespass. See Felony, False Imprisonment Landlord and Tenant, 
 Tort. 
 act on for, 24 
 
 lie* for entry upon land in the occupation of another, 333 
 ca' not be brought by person without possession, 335 
 therefore must be brought by tenant in possession and not by landlord, 
 
 339 
 lies also for mesne profits, 498, n. (^) 
 
 Trover, 
 
 lies for goods wrongfully sold, 20 
 action on, 24 
 
 is actionable irrespective of any damage, 54 
 right to bring, depends on right to possession, 346, 347, 352, 353 
 who is owner for this purpose, 347-352 
 maybe brought by bailees and carriers, 352, 353 
 mere possession is sufficient against a wrong-doer, 354 
 even that of a finder, 354, 355 
 wrong-doer can not set up jus tertii, 356 
 
 ■Bless plaintiff relies not on actual possession, but on his right to pot- 
 session, 357 
 mny sometimes be brought by either bailee or bailor, 358, 359
 
 ie marginal paging.'] INDEX. 559 
 
 Trover — Continued. 
 
 can be brought by no one who has not a right to immediate possessioD 
 
 359 
 how this right may be acquired or restored, 361-366 
 what acts amount to conversion, 419 
 each person who converts is liable to be sued, 420 
 Trustee, . 
 
 can not be sued at law for the trust money, 41 
 
 unless he has acknowledged he holds it for the cestui que tmst, 
 42 
 when debt to or from can be set off, 46 
 Trustee in Bankruptcy. See Bankruptcy. 
 
 occupies the same position the assignee formerly did, 189, n. (a) 
 
 Unincorporated Company. See Partners. 
 
 mnst sue and be sued in the names of its individual members, 148 et 
 
 seq., 266 et seq. 
 however numerous they may be, 149 
 except 
 
 where an unincorporated company is empowered by statute to 
 
 sue in the name of its public officer, 150 
 or where it is being wound up, 15 1 
 one member can not sue another on any matter relating to the accounts 
 
 of the company, 155 
 where a public officer can sue, or be sued by, members of the company, 
 
 156, 157 
 effect of winding up, 161 
 
 of bankruptcy of one or more of its members, l6r 
 when insolvent, are generally wound up, 273 
 on petition for winding up actions against can be stayed, 274 
 effect of registering, 274 
 a company empowered to sue and be sued in the name of its public 
 
 officer does not lose this power by stopping payment, 274 
 how affected by the doctrine of survivorship, 275 
 
 one, any or all members may be sued for a wrong committed by the 
 company, 468 
 
 Volunteers. See Principal and Agent. 
 
 when liable for goods supplied to tiie corps, 231, 251 
 War. See Alien Enemy. 
 
 in time of, alien enemy can not sue, 3 
 
 but he can sue on the restoration of peace, 3
 
 LAW LVSF&tr 
 
 UNIVERSITY OF CALIPORNH! 
 LOS ANGELBS
 
 ■oo.DYCftCIUTY 
 
 AA 000 729 612 2