''■'.^'■Ati.^r'* ■/■'''; ■-'■■■V. ^ ■•■^' ■^ THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ■ral- I A TREATISE THE RULES FOR THE SELECTION OF THE PARTIES TO AN ACTION BY A. V. DICEY, Esq OF THE INNER TEMPLE, BARRISTER-AT-LAW. WITH NOTES TO AMERICAN CASES BY J. HENRY TRUMAN, Esq OF THE CHICAGO BAR JERSEY CITY: FREDEPaCK D. LINN & CO., 1879. T I? 7 5 PREFACE TO THE AMERICAN EDITION. The number of law books each year presented to the attention of the profession is really so enormous that the propriety of adding yet a further one, new- cither in form or composition, to the mass, is a mattei of serious consideration, and its advent is an even! almost commanding an apology; but in this case the topic, and the thorough way in which the author has treated it, as well as the high opinion it has won from the profession in England should recommend it both to students and practitioners, and should secure it a favorable reception. As the author has himself said of the work he had undertaken, he aimed ro gather under the head of general rules, the established doctrines and decisions concerning Parties to Actions — and to concentrate in one work what was scattered through many and as he aimed, he ha^ done. The editor of the present Editi^on undertakes none but the simple task of filling- out the lines when 66V770 iv PREFACE. our own practice, or late decisions, have caused them to deviate from the general rules in force, in American courts, trusting with so good a foundation, the work may be found useful and reasonably complete. J. H. T. 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 of 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 as merely subsidiary to the law of "practice," and w^ere 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 PREFA CE. 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 clear]}' 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 ^^hich 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 PAGIXG.J RULES COMMON TO ALL ACTIONS. 1. — The person who can sue and be sued I *~ 5 II. — The Division of Actions . . — 6-27 III. — General Rules applicable to all actions 2-9 2S-77 RULES IN ACTIONS ON CONTRACT. PLAINTIFFS. IV.— General Rules . . . 10-16 78-129 v.— Principal and Agents. . . 17-^9 i3o-'-r7 VI.— Partners 20-24 148-162 VII.— Corporations .... 25-28 163-170 VIII.— Husband and Wife . . . 29-33 171-188 IX.— Bankrupt and Trustee . . 34-4° 189-204 X— Executors and Administrators . 4i-45 205-222 CONTENTS. DEFENDANTS. CHAPTER 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 [References are RULES PAGES 46-52 223-238 53-54 239-265 55-58 266-275 59-62 276-283 63-65 283-705 66-69 29&-305 70^72 306-312 43-77 313-324 RULES IN ACTIONS FOR TORT. PLAINTIFFS. XIX.— General Rules . XX. — Principal and Agent . XXI. — Partners . . . r XXII. — Flusband and Wife . XXIII. — Bankrupt and Trustee XXIV. — Executoi's and Administrators . 78-82 325-382 . 83 383 . 84-85 384-3S8 .. 86-88 389-394 . 89-9 T 395-401 • 92-95 402-409 DEFENDANTS. XXV.— General Rules . XXVI. — Principal and Agent XXVII.— Partners . XXV'III. — Corporations XXIX.— Infants 96-100 410-440 101-103 441-467 104 468-469 105 470-473 106 474-475 to margma! pacing.} CONTENTS. Xt CHATTER XXX. — Husband and wife XXXI. — Bankrupt and Trustee XXXII. — Executors and Administrators . EJECTMENT. XX Xni.— Ejectment ...... iio-irj 4S4-49S BUI.BS PACES 107 476-479 108 4S0 109 4S1-4S3 EFFECT OF ERRORS. XXXIV. — Non-joinder, Mis-joinder, and Amendment .... 114-118 499-509 P.\RTIES 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. () 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 cnse, 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, 15. 2; Coke, Lit., 33 a. • ' In King of Spain v. Oliver, 2 Wash. C. C 43, 2, the circuit court refused to decide on motion, as improper, the 2 PARTIES TO ACTIONS. A foreign sovereign is entitled to sue in our courts [2] for breaches of contract, {e) 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 of 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 {e) Emperor of Brazil v. Robinson, 6 A. & E. 801. ( /) 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 question whether a suit could be supported in the name of the " King of Spain," by Ferdinand VII., before he had been recog- nized by the United States as king. The Priest of the Mission Dolores may, in his character as priest, maintain in his own name an action to recover possession of the mission lands. Santillan v. Moses, i Cal. 92. A foreign republic, acknow- ledged as such by the government of the United States, may sue in our courts. Republic of Mexico v. De Aragonez, 5 Duer, 634. ' And so it has been held that a certain number of persons belonging to a voluntary society, having a common interest in the society, mav sue in equity in behalf of themselves and their associate members of the society, for purposes common and beneficial to them all. Beatty v. Kurtz, 2 Pet. 566. 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 capacicy 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 tlie Crown until office found, (//) he may sue, unless the Crown interfere to prevent him, on contracts {c. g., {or 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 oflice found on behalf of the Crown ; (z) 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 (jther object than to applj' 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, (/^) Kynnaiid v. Leslie, L. R., i C. P. 3S9 ; 35 L. J. 226, C. P. ; Addison, Contracts, 6th ed., 1024. {i) Cole, Ejectment, 573. Doe d. GrifFith v. Piitcli.ird, 5 15. & Ad. 6.75. {k) Bernard's case, Owen, 22 ; Com. Di^., Forfeiture, 1>, 2. (/) Coke, Litt., 12S a. (/«) Addison, Contracts, 6th ed., 1024. ' In New York, a person convicted and attainted of fcIon\-, prior to March 29, 1799, is not civilly dead so as to div st !iis estate, and after a pardon, he may maintain an action concerning an estate holden by him prior to conviction. Platnerv. Sher- wood, 6 Johns. Ch. 7 18. But a pardon will not operate 'o annul the sale of the felon's property by persons appointed tc, administer on his estate, nctr divest the interest ot" his heirs tlierein acquired by his civil death. Matter of Deming, 10 Johns. 232 ; Id. 483. ^ But the pardon, in that State at least, will not operate to annul a second marriage of his wife. Matter of Deming, 10 ^ohns. 232 ; Id. 4S3, 4 PARTIES TO ACTIONS. to all his rights, in) and stands in the same position as if he had never been outlawed, {p) ' An alien enemy can not, during the continuance of war, unless under the license or protection of the Crown, (/) bring an action, or continue an action commenced before the war began. {(]) Under the term alien enemy are included not only the subjects of any state at war vvdth 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 (;/) Com. Dig., Outlawry, C. 5. {o) IhicL, and St. John's College v. Murcott, 7 T. R. 259. (p) Wells V. Williams, i Salk. 46. {(]) l.e Brett V. Papillon, 4 East, 502 ; Alcinous v. Nigreu, 4 E. & T>. 217; 24 L. J. 210, Q. B. (/■) Aiitoiiic V. Alorshead, 6 Taunt. 237 ; Daubuz v. Morshead, C Taunt. 332. ' So, after pardon from the state's prison, where he was sentenced tor lite, a convict is entitled to tlie custody of his children. Matter of Dening, 10 Johns. 232 ; Id. 483. Tlie par- don of a man convicted of fornication and bastardy discharges him from all liabilitv for costs or tor the maintenance of his bastard child; Commonwealth v. Ahl, 43 Pa. St. § 3 ; and an execution for fine and costs against one pardoned is void ; Blanchard v. State, Wright (Ohio) 377 ; and as to the extent 10 which a pardon relieves frotn actions for fines, costs and penalties, and liabilities for fees of prosecuting officers, in- formers, (Sic, see Anglea v. Commonwealth, 10 Gratt. 696; Fugate's Case, 2 Leigh, 724; Rowe v. State, 2 Bay, 565; Com- monwealth V. Hilchman, 46 Pa. St. 35; ; Same v. Ahl, 43 Id. 53 ; Scliuylkill V. Reifsnyder, 46 Pa. 446 ; Commonwealth v. Bush, 2 Duval, 264 ; Routt v. Feemster, 7 J. K. Marsh. 131 ; Rucker v. Bos.vorth, Id. 645; State v. Farley, 8 Blackf. 229; Common- wealth V. Shisler, 2 Philadel. 256 ; United States v. Athens Armory, 35 Ga. 344; Ilollidav v. People, 10 111. (5 Gilm.) 214. "But the fact that one of the plaintiffs, who is a mere nominal partv to the suit, is a public enemy, is not ground sufficient lor dismissing the petition of the only beneficial plaintift", who is lujt an enemv. Iloskins v. Gentry, 2 Duv. (Ky.) 285. IVHO CAN SUE AND BE SUED. ^ prisoner 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 ; (/) and thous^h 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 (?/) made or for a wrong done before the commencement of the wan {v) ' The disabilities of an alien enemy are less than they at first sight appear. '* On declaring war, the king usual)}', in 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 ; (j) 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." {3) "" {s) Sparenburgh v.'Baniiatyne, 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. {)') Coke, Litt., 129 b, note by Hargreave. {z) Williams, Exors., 6th ed., 222. * But a pardon will not relieve one from his civil responsi- bility for acts of trespass committed while in rebellion. Hedges v. Price, 2 W. Va. 192. '^ A general act of amnesty and pardon must be recognized by coiu-ts the same as any other public law, nor can the bene- fit of it be waived by individuals who come within it. State v. Hlalock, Phill. (N. C). But a special pardon must be judi- cially brought before the court. United Sttites v. Wilson, 7 Pet. 150, L. 242. An amnesty act, however, which relieves from civil liabilities for private wrongs, is unconstitutional and void. Terrill v. Rankin, 2 Bush. 453; see Haddix v. Wilson, 3 Id. 5-\3; Hedges v. Price, 2 W. Va. 192 ; State v. Kieth, 63 N. C. 6 PARTIES TO ACTIONS. To an action for 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 efiemy ; {a) 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, (r) 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 ot right, {d) A foreign sovereign clearly can not be sued in the courts of this country for any act done by him in the character of a sovereign prince ; (r) and it would appear most probable that he can in no case be made defendant in an action. (/) (ff) Com. Dig., Abatement, E. 2. (!>) I.u.-h, Practice, 3rd ed., 5. (<-) Caroon's case, Croke, Car. 9 ; Brocks v. Phillips, Croke, Eliz. 6S3, Coke, Litt.. 123 b ; Kynnaird v. I.eslie, L. R., i C. P. 400 ; 35 L. J. 226, C. P. ((/) Canterbury's case, i Phil. 322 ; and Com. Dig., Action, C. i. (e) Duke of Brunswick v. King of Hanover, 6 Beav. i ; 2 VI. L. i ; W.ids- 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. Westlalce, Private International Law, ss. 135-139 140. A full pardon, or amnesty by the president, remits so much of a penalty as is due to the United States. Armstrong's Foundry, 6 Wall. 766. The oath required by an act of con- gress. of July 2, 1862, to be taken before an attorney can be admitted to practice before the courts of the United States. can not be exacted from one who has received the pardon ot the president for all offenses " arisingf from participation, direct or implied, in the rebellion." Ex parte Garland, 4 Wall WHO CAN SUE AND BE SUED. 7 A public minister {g) accredited to the Queen by a foreign state, is privileged from liability to be sued here in civil actions, {h) and hence such a minister has been held not liable to be sued for calls due to a company of which he was shareholder ; {i) 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. {h) Magdalena Steam Nav Co. v. Martin, 2 E. & E. 115 ; 28 L. J. 310, Q. B. {i) Ibid. * By subdivision eighth of § 711 of the Revised Statutes of the United States, revision- of 1863, the jurisdiction " of all suits or proceedings against embassadors, or other public ministers, or their domestics or domestic servants, or against consuls or vice-consuls, is vested in the federal courts." See United States v. Ravard, 2 Dallas, 297; Cohens v. Virginia, 6 Wheat. 407 ; Davis v. Packard, 7 Pet. 276 ; St. Luke's Hos- pital v. Barkley, 3 Blatchf. 259; United States v. Ortega, ri Wheat. 467. Section 687 of the revision cited, enacts that " the supreme court (of the United States) shall have exclusively all such jurisdiction of suits or proceedings against embassa- dors or other public ministers, or their domestics or domestic servants, as a court of law can have consistently with the law of nations, and original but not exclusive jurisdiction of suits brought by embassadors or other public ministers or in which a consul or vice-consul is a party." PARTIES TO ACTIONS. CHAPTER II. THE DIVISION OF ACTIONS. Actions are of different kinds, and can be classed or divided on various principles, (a) They 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 Aciiojis 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 {a) An old division is that into real actions, i. e., actions brought for the specific recoveiy of lands, tenements, and hereditaments ; personal actions, /. 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, or any other injury ; and mixed aciions, i. e., 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, pergonal actions. Ejectment, which may be considered a mixed action, is treated of sepa- rately. See Chap. XXXIII. DIVISfON OF ACTIONS. g a right to have the contract performed by X., and ihere 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 seconil 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, /. c, all the facts which together constitute the plaintiff's rig lit to maintain the action, (d) 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 (r) 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. (d) See Allhusen v. Malcjarejo, L. R., 3 Q. B. 340 ; 37 L. J. 169, Q. B. , Sichel V. Boich, 2. H. & C. 954; 33 L. J. 179, I^x. (c) Slade v. Noel, 4 F. & F. 424 ; Life v. Round, 6 VV. 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 goeds supplied other- wise than on credit, an action can, it is true, be brought immediately that a debt is incurred, /. e., on the delivery of the goods, and without any demand upon the debtor for payment. 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, id) ' id) Com. Dig., Action, E. A case such as Hochster v. De la Tour, 2 E. & 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 an action against hi? priiposed employer for announcing his resolution not to employ him, is not in reality inconsistent witii this statement, since the defendant was held to have broken his contract by the refusal to employ the plaintiff. ' And the right of action follows the interest. Townsend V. Townsend, 5 Harr. (Del.) 127; Stoddard v. Mix, 14 Conn. 12, DIVISION OF ACTIONS. il 2. Actions for Tort, or ex delicto An action for tort is an action for a wrong inde- [9] pendent of contract, (r) c. g., for an assault, imprison- ment, fraudulentmisrepr esentation, &c. In other words, a wrong or a tort is a violation by one person of any of the rights {c. g., the right to personal liberty) possessed by another person independently of any agreement with the wrong-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 ri^ht 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, Scliecl. B. (/) A right conferred by contract may He either a positive right, i. e., a right to have a thing done, e. ^., to have a house built — or a negative right, /. e., to have something not done, e. <,'-., not to be hindered from passing over a cer- tain piece of land : a right independent of contract is in almost every case a negative right, e. g., not to be assauUed, not to be defrauded, &c. 12 PARTIES TO ACTIONS. in dlflerent parts of this treatise, may be here pointed out generally. The chief of these differences are 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 ol a contract must be the pei-soii with whom the contract is in the eye 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. {Ji) 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 separate rights of action against a wrong-doer fur 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 (i^') Winterhottom v. Wright, lo M & W. log ; ir L. J. 415, Ex., Rule 10. (//) ("ompare Alton v. Midland Rail. Co., 19 C. B., N. S., 213 ; 34 L. J. 292, C. P. (/) See Scott V. Shepherd, i Smith, L. C, 6th ed., 422-423, judgnunt of Gould, J., " Whenever a man dues an unlawful act he is answerable for all the consequences." * Townsend v. Townsend, 5 Harr. (Del.) 127 ; Stoddard v. Mix, 14 Conn. 12. Nor can individuals proceed in equity to enforce purely public rights. Smith v. Heuston, 6 Ohio, 10 1. 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-joinder ofB. 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, z. 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, if the objection be not taken at the proper stage of the proceed- (/&) Addison v. Overend, 6 T. R. 766 ; Sedgworth v. Overend, 7 T. R. 279. (/) See Chapter XXXIV., as to in)n-joiuder of plainiiffs. 14 PARTIES TO ACTIONS. ing-s before the trial, X. will be held liable on the joint contract of X. and Y. {in) In an action for tort, no objection whatever can be made to the non-joinder of a joint w^-ong-doer as defend- ant. In other w^ords, 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. jointly, 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. only, 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, {ji) 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, {d) The distinction between an action on contract and an action for tort is in itself clearly marked, but the distinction, (»//) Rice V. Shiite, i Smith, L. C, fith ed., f;ii. (//) For the effect of non joinder, misjoinder, and the amendment of these errors, see Chapter XXXIV. (1?) In the superior couns. in an action on contract, a verdict for more than ;^20 carries costs ; but in an action for tort, a verdict for more tlian ;/['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 actions 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 only " two kinds of common law actions ; one for injury to person or property, and the other for breacli 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." (/) 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 ; 38 L. J. 121, Ex. (q) The expression "implied contract " is used in several senses. In the sense in which the term " implied contract " is here used, an action on an im- plied contract nearly corresponds with an action quasi 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 between the parties, bii where a state of things has arisen in which the law considers one of them bound to the oilier in the same manner as if a contract had been made. 1 6 PARTIES TO ACTIONS. One action cf this class is what is called " an action for inoncy had and received." This is '' a kind of equitable action to recov^er back money which ought not in justice to be kept It lies onh' for money which, ex asquo 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 under 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 oi" 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 over the amolint 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 emplo3'er, his [15] liability may be concisely described as for money received by the defendant for the use of the plain- tiff, without entering into particulars of the contract under which it was received." (/) 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 the place to enumerate. (r) .9<:. a mistake of fact, Milnes v. Duncan, 6 B. & C. 671 ; Marriott v Hampton. 2 Smith, L. C, 6th ed., 3S8. {s) Per Mansfield, C. J., Moses v. Macfarlane, 2 Burr. 1012. {t) 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 been a contract between them, i. e., it is a right quasi ex contractu. («) Compare 34 L. J. 297, C. P. {v) Alton V. Midland Rail. Co., 19 C. B., N. S. 241 ; 34 L. J. 292, C. P., per WiLLES, J. See Lythgoe v. Vernon, 5 H. & N. iSo ; 29 L. J. 164, Ex. {y) Brewer 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." {2) " That there is a large class of cases in which the foundation of the action springs out of the privity of contract between the pari'.wS, but in which, nevertheless, the remedy for the breach or the non-performance is indifferently either assumpsit {z. 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. {&) " The word duty," it has been said, " is introduced (z) Addison, Torts, 3rd ed., 13. (a) Boorman v. Brown, II L. J. 439, Ex. fEx. Ch.), per Tindal, C. J. (i) In considering this question, it 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. (r) . . . I 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 1 do not understand, but it is so considered." id') So, in an action (r) 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 \i. e., founded on contract], and falls within the principle of a series of decisions which leave no room for doubt. The case does not . . . fall within the principle contended for on the part of the (c) " An action on the custom of the realm against a common carrier is for a tort or for a supposed crime, and the plea is ' not guilty ;' therefore, at com- mon law the action will not lie against the carrier's executors, but an action of assumpsit will lie against them on the very same cause." Williams, Executors, 6th ed., 1598, citing Cowp. 375. See further, Chapter XVIII., post. (d) Powell V. Layton, 2 N. R. 367, 370, per Sir J. Mansfield, C. J. \e) Alton V. Midland Rail. Co., 19 C. B., N. S. 213 ; 34 L. J. 292, C. P. 20 PARTIES TO ACTIONS. plaintifis, for 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 by 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." (//) But though in numerous cases {i) 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, {m) 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, {0) a servant was held entitled to sue for the (/) Ibid., 19 C. B., N. S. 239, 240. per Willes, J. \g) Ibid., 241, Judgment of WiLLES, J. {k) Ibid., 240, per WiLLES, J. (i) See, in favor of this view, Marzetti v. Williams, I B. & Ad. 415 ; Win- terbottom v. Wright, 10 M. & W. 109, 11 L. J, 47, Ex. ; Tollit v. Shenstone, 5 M. & W. 283. (/&) 8 A. & E. 963. ( /) Tattan v. G. W. Rail. Co., 29 L. J. 186, Q. B., per Crompton, J. (w) 3 East, 62. («) Marshall v. York, Newcastle and Berwick Rail. Co., II C. B. 663, per Williams, J. {o) n C. B. 655 ; 21 L.J. 34, C. P. DIVISION OF ACTIONS. 21 loss of his luggage, though the contract for its carriage was with his master, and he, therefore, had the action 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 Berwick 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 duty on the company to carry him safely." {g) 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 (rj) de- clarations were 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. More 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 implied contract, or what is in {p) Rule 10. Compare, as agreeing with this view, Martin v. Great Indian Rail. Co., L. R. 3 Ex. 9 ; 37 L. J. 27, Ex. {q) Austin v. G. W. Rail. Co., L. R., 2 Q. B. 447 ; 36 L. J. 202, Q. B. (r) See ante. (s) Bullen, Pleadings, 3rd ed., 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 of trover, {t) 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, /. e., on contract, or for neglect of the duty to carry the goods safely, i. 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, {ti) 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.g., he is liable to a plea of set-off, {w) and can not obtain costs {x) unless he recovers more than ;^20. 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 £\o, {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 of contract as a tort, {z) While, in short, a plaintiff can, by var3'ing the mode in which an action is brought, affect points of proce- (/) Lythgoe v. Vernon, 5 H. & N. 180 ; 29 L. J. 164, Ex. lu) Alton V. Midland Rail. Co., 19 C. B., N. S., 241 ; 34 L. J. '.92, C. P. (70) See Leake, Contracts, 48. (x) Tattan v. G. W. Rail. Co., 29 L. J. 184, Q. R. ( r) It maybe questioned wliether this is so under the late Act (30 & 3I 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 relied 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. I 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 party 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 grive a more con- {a) As to this point, compare Alton v. Midland Rail. Co., Iq C. B., N. S., 2'i3, 34 L. J. 292, C. P. ; Marshall v. York, Newcastle, and Berwick 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. y^) AUon V. Midland Rail. Co., 19 C. B., N. S., 2^0, 241. 24 PARTIES TO ACTIONS. venient remedy to the party wronged. In the last cas^ you have an instance of an election which is clogged 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 were originally divided into certain " kinds," or, as they are called, " forms " (c) 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 {i. 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, {d) 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. (c) See ante. (,/) C. L. P. Act. 1S52, s. 3. {e) Ibid., s. 41. {/) Tliey may be so considered for convenience ; but the division o^ actio is into forms existing earlier than, and independently of the division into actio s 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. (<:). Danby v. Lamb, li C B., N. S., 427. DIVISION OF ACTIONS. 25 The forms of actions are • — I. Debt ' 2. Covenant on contract. 3. Assumpsit - 4. Trespass 5. Trespass on the case 6. Trover for tort. 7. Detinue 8. Replevin 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, /. 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, {g) "Covenant" lies where a party claims damages [24J for a breach of covenant, i. e., of a promise under seal, {h) " Assumpsit " lies where a party claims damages for a breach of a simple contract, i. e., 3. promise not under seal. " Trespass " lies where a party claims damages for a trespass committed upon him, /. 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, e. g., torts arising from negligence, fraud, &c. {g) Stephen, Pleading, 6th ed., i6. Assumpsit could never be maintained where covenant could, and vice versa ; but debt could sometimes be brought where covenant could also be brought. Assumpsit will lie, though debt lies also. Com. Dig., Action upon the Case upon assumpsit, C. {h) See previous note. 20 PARTIES TO ACTIONS. As distinguished from trespass it lies for an indirect, as contrasted with a direct and immediate injury, {i) But the distinction between the one form 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, [251 (/) 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. {11) (B) Local and Transitory Actions. Actions are further divided into " local " actions and " transitory " actions. A local action is one which necessarily depends on local matters, such as the breaking into a house, the (/) Scott V. Shepherd, i Smith L. C, 6th ed., 419 (7) Ibid., 423, and t;eiieial 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. 'J'his definition must apply to case in its original sense, in which it included assumpsit. {k) Moi-kford v. Taylor, 19 C. 11, N. S., 20g ; 34 L. J. 352, C. P (/) C. L. P. Act, 1S54, s. 78 ; an.i Day, Procedure Acts, 3rd ed., 273. (wj Selwyn, N. P., 13th etl.; 5S3. («) Mellor V. Leather, i K. & 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 iiupedit. DIVISION OF ACTIONS. 27 diversion of a stream, and generally injuries to real 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 in 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. (/) I A transitory action can be tried in our courts whether the cause of action arose within or without the jurisdic- tion. (^) (p) Mostyn v. Fabrigas, notes, I Smith L. C, 6th ed., 649 ; Bullen, Pleadings, 3rd 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, /^^^. {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 fixed 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, e.g., 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 the damage which he has suffered by the non-delivery of the goods. It is sometimes, however, not easy to decide at first sight whether an action 28 PARTIES TO ACTIONS. is brought to recover a liquidated demand, i. e., a debt, or an unliquidated de- mand, i. 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 ihis 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. ; 10 Ex. 474]- Claims under a guarantee (Williams v. Flight, 2 Dowl., N. S., Ti ; Atwool v. Atwool, 2 E. & B. 23 ; 22 L. J. 287, 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. 683; 27 L.J. 163, Q. B.). A claim for the value of goods lost (Meyer v. Dresser, 33 L. J. 289, C. P., 16 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 the 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, where 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 is, 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 ; Hodsall v. Baxter, 28 L. J. 61, Q. B. ; Hall v. Scotson, 23 L. J. 85, Ex., 9 Exch. 238). 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 to 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 which he owes A. ; and can, by so doing, ac- DIVISION OF ACTIONS. 29 cording to the amount of the respective debts, 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 {i. e., liquidated claims) can be set-off against debts. Neither can one claim for unliquidated damages be set-off against another, nor can a debt be set-ofif agiinst a claim for unliquidated damages. 30 PARTIES TO ACTIONS CHAPTER III. GENERAL RULES APPLICABLE TO ALL ACTK »NS. 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, i. 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." {a) 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 whatever, 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. GENERA L 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., infringes 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, {b) 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 damage, 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 m}' 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, [e) 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.. Hill v. Tupper, 2 H, & C. 121, 32 L, J. 217, Ex., noticed post. See Chapter XIX. for ca-;es where an action of trespass should be brouglit in the name of a tenant, though really on behalf of a landlord. (r) Bacon, Abr., Actions, B. (d) Aldred's case, 9 Coke, 58 b. I {e) Webb v. Bird, 10 C. B., N. S., 268 ; 30 L. J. 2S4, C. P. ; 10 C. B., N, S. 841 ; 31 L.J. 245, C. P., Ex. Ch. (/) Solomon v. Vintners' Co., 4 H. & N. 585 ; 28 L. J. 370, Ex, 32 PARTIES TO ACTIONS. B., serves a writ upon him, and follows up the action against him, A., though he has a good defense, and can recover costs, has no remedy 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 whom an action is unnecessarily brought, experiences some damage or inconvenience beyond what costs compensate him for, and yet 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 whether 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 writing or by word of mouth, give a cause of action (?) 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 law 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- I {g) See Davies v. Jenkins, 11 M. & W. 756, judgment of Rolfe, B. {k) 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 the subject of in in- dictment. GENERAL RULES. 33 ments 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, (;;2) 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, 15 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. {>ii) Mackay v. Ford, 5 H. & N. 792 ; 29 L. J. 404, Ex. ; Kevis v. Smith, iS C. B. 129 ; 25 L. J. 195, C. B. ; Henderson v. Broomhead, 4 H. & N. 569 ; 28 L. J. 360, Ex. ip) Wason V. Walter, L. R. 4, Q. B. 73 ; 38 L. J. 34, Q. B. {p) See notes to Ashby v. White, i Smith, L. C, 6th ed., 258, 259; Dawkins v. Lord Paget, L. R. 5, Q. B. 94. ' As to the rules regulating what are known in law as " priv- ileged communications," see Morgan's Law of Literature, i. 205, 215-221 ; ii. 433. As illustrating the rule as established in the United States concerning privileged communications, the case of Philadelphia'; Wilmington & Baltimore R. R. Co., reported in 21 How. 202, 6 Am. Railway Rep. 506, the question %s to how far the report of the directors of a corporation to its stockholders was a privileged communication, in respect to an alleged injurious libel contained therein, arose. Said Mr. Justice Campbell in that case : " The plaintiff, Quigley, a citizen of Delawai-e, complained of the defendants 'a body corporate in the state of Maryland, by a law of the general assembly of Maryland, for the publication of a libel by them, in which his capacity and skill as a mechanic and builder of depots, bridges, station-houses, and other structures for rail- road companies had been falsely and maliciously disparaged and undervalued. The defendants pleaded the general issue. On the trial of the cause, it appeared that, in 1854,. the presi- dent and directors, then in charge of the affairs of the defen- dants, instituted an inquiry into the administration and 34 PARTIES TO ACTIONS. In the foregoing instances the person damaged has clearly not been injured, i. e., has not suffered an inter- ference with his rights. The following examples illus- management of a person who had been the superintendent of their railroad for ten years. Among other subjects, the nature of his connection and dealings with the plaintiff, who had like- wise been in the service of the corporation as " general fore- mifn of all their carpenters," engaged the attention of the committee of investigation. The president of the company, who conducted the inquiry before this committee on behalf of the corporation, seems to have been convinced that the super- intendent had exhibited partiality for the plaintiff, and had allowed him extravagant compensation for service, and the privilege of free transit over the road for himself, his work- men, and freight, to the detriment of the company, and in breach of his duty as superintendent. The superintendent defended himself against these and other imputations, and produced 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, addressed a letter to an archi- tect, 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, affirming that " he was not en- titled to rank as a third-rate workman," and " was unable to make the simplest geometrical calculations." All the testimony collected by the committee, as produced by the superintendent, was carefully reduced to writing, and printed; first, for the use of the president and directors, and afterwards was sub- mitted to the company, at their meeting, on the 8th of January, 1855, with a report, which exonerated in a great measure the superintendent from any malpractice in conse- quence 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 company. The letter of the architect, in answer to the letter of the president, is printed in one of these volumes, and this publication is the libel complained of. Several of the direc- tory testify that they were not aware of the publication, and evidence was adduced that the plaintiff had declared that the GENERA L RULES. 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 investigation had resulted in increasing his business. A ver- dict was returned in favor of the plaintiff. The defendants are a company incorporated by the legislatures of Delaware and Pennsylvania, as well as of Maryland, to construct a rail- road to connect the three cities which contribute to form its name, and a portion of their directors and stockholders 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 limited 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 necessary 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 argument, we should be required to concede that a corporate body could only act within the limits and ac- cording to the faculties determined by the act of incorporation, and therefore that no crime or offense can be imputed to it. That although illegal acts might be committed for the benefit or within the service of the corporation, and to accomplish objects for which it was created by the direction of their domi- nant body, that such acts, not being contemplated by the char- ter, 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 legitimate con- sequence, 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 the states of the Union relative to these artificial persons. Legislation has encouraged their organi- zation, as they concentrate and employ the intelligence, energy, and capital of society, for the development of enterprises of public utility. There is scarcely an object of general interest for which some association has not been formed, and there are institutions whose members are found in every part of the Union, who contribute their efforts to the common object. To enable impersonal beings — mere legal entities, which exist only in contemplation of law — to perform corporal acts, or deal with personal agents, the principle of representation has .^6 PARTIES TO ACTIONS. X. and Y. were the owners ol a mill standing on land adjoining that under which the mines were worked. [32] Defendants employed competent persons to con- been adopted as a part of their constitution. The powers of the corporation are placed in tlie hands of a governing body selected by the members, who manage its affairs, and who ap- point the agents that exercise its faculties for the accomplish- ment of the object of its being. But these agents may in- fringe the rights of persons who are unconnected with the corporation, or who are brought into relations of business or intercourse with it. As a necessary correlative to the principle of the exercise of corporate powers and faculties by legal re- presentatives, 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 con- stitution, have the judicial tribunals determined the legal relations which are established for the corporation by their governing body, and their agents, with the natural persons with whom they are brougiit into contact or collision. The result of the cases is, that for acts done by the agents of a corporation, either in contractu or in delicto, in the course of its business, and of their employment, the corporation is res- ponsible, as an individual is responsible under similar circum- stances. At a very early period it was decided in Great Britain, as well as in the United States, that actions might be maintained ai^ainst corporations for torts; and instances may be found in the judicial annals of both countries of suits for torts arising from the acts of their agents, of nearly every variety. Trespass quare clausum fregit was supported in 9 Serg. and R. 94 ; 4 Mann, and G. 452 ; Assault and Battery, 4 Gray (Mass.) 465; 6 Ex. Ch. 314. For damages by a collision ot rail-cars and steamboats, 14 How. 465 ; 19 How. 543. For a false representation, 34 L. and Eq. R. 14; 11 Wheat. 59. The case of the National Exchange Co. of Glasgow v. Drew (2 Macqueen, H. of L. Cas. 103), was that of a company in failing circumstances, whose managers sought to appreciate its stock by a fraudulent representation to the company, and a publication of the report as adopted by it, that its affairs were prosperous. Two of its stockholders were induced to borrow money from the company to invest in its stock. The question in the cause was, whether the company was responsi- ble for the fraud. In the House of Lords, upon appeal, Lord St. Leonards said : " I have come to the conclusion, that 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 if representations are made by a company fraudulently, for the purpose of enhancing the value of stock, and they induce a third person to purchase stock, those representations so made by them bind the company. I consider representations by the directors of a company as representations by the company, although they may be representations made to the company." The report " becomes the act of the company by its adoption and sending it forth as a true representation of their affairs; and if that representation is made use of in dealing with third persons for the benefit of the company, it subjects them to the loss which may accrue to the party who deals, trusting to those representations." It would be difficult to furnish a reason for the liability of a corporation for a fraud, under such circumstances, 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 connects large cities, and passes through a fertile district. Their business brings them in competition with companies and individuals concerned in the business of transportation. They have a numerous body of officers, agents, and servants, for whose fidelity and skill they are responsible, and on whose care the success of their business depends. The stock of the company is a vendible security, and the community expects statements of its condi- tion 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 in- vestigation to the stockholders, and that a publication of the evidence and report is within the scope of the powers of the corporation. But the publication must be made under all tlie conditions and responsibilities that attach to individuals under such circumstances. The Court of Queen's Bench, in White- field V. South East. R. R. Co. (Mny, 1858), say : " If we yield to the authorities which say fcUat, in an action for defamation, malice must be alleafed, notwithstandinsf authorities to the contrary, this allegation may be proved by showing that the publication of the libel took place by order of the defendants, and was therefore wrongful, although the defendants had no 'U-will to the plaintiffs, and did not mean to injure them." \nd the court concluded : " That for what is done by the 38 PARTIES TO ACTIONS. above, and which were 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 authority of a corporation 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 relations of the president and directors, as a committee from their board, to the corporation itself. It can not 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 constitu- ents of the evidence collected by them, and their conclusions 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 extend to the preservation of the report and evidence in the permament form of a book for distribution among the persons belonging to the corporation or the mem- bers 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 en- gaged in an enterprise of public utility, could be reported in a newspaper as a privileged publication. But a libel con- tained in such proceedings, if preserved in the form of a bound volume, might be attended with more mischief to pri- vate character than any publication in a newspaper of the same document. The opinion of the court is, that in so far as the corporate body authorized the publication in the form employed, they are responsible in damages. The circuit court instructed the jury : i. If the jury find, from the evidence in this case, that the defendants, by the president and directors of said company, published the letter from John T. Mahoney to S. M. Felton, president, &c., dated March 3, 1854, in the declaration mentioned, and that any or all of the statements in the said letter respecting the plaintiff in his trade and oc- cupation are false; and shall further find, that the said presi- dent and directors, at the annual meeting of the stockholders of said company, held 8th January, 1S55, reported to the said stockholders their action in the premises, and that the proceedings of the committee of investigation (which con- tained the said letter) were then being printed, and, as soon as printed, would be distributed to the stockholders, and that said report was accepted by the stockholders ; and if the jury GENERAL RULES. 39 Y.'s reservoir broke through the shafts and flooded A.'s mine. There could in this case be no doubt that A. had beeii shall further find that, after the meeting- of the stockholders had adjourned, the president and directors of said company- distributed the book containing- the said letter among the stockholders of the company, or any of them, then the jury may- find for the plaintiff. 2. And if the jury find for the plaiatiflf under the first instruction, they are not restricted in giving damages to the actual positive injury sustained by the plain- tiff, but may give such exemplary damages, if any, as in their opinion are called for and justified, in view of all the circum- stances in this case, to render reparation to plaintiff, and act as an adequate punishment to the defendant. The first in- struction is erroneous, because the publication to which the court referred as blameworthy, and to authorize the jury to find a verdict against the defendant, took place after the com- mencement of this suit. The second instruction contains the same error, and is objectionable fijr the additional reason that the rule of damages is not accurately stated to the jury. In Day v. Woodworth, 13 How S. C. R. 371, this court recognized the power of a jury in certain actions of tort to assess against the tort-feasor punitive or exemplary damages. Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple com- pensation for the wrong committed against the aggrieved per- son. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act. The word implies that the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations. Nothing of this kind can be imputed to these defendants. The letter of Mahoney was reported to the company with other evidence that rendered it innocuous, and its statements were never adopted by them. The plaintiff has repeatedly affirmed that he had derived an advantage from the investigation by the company, and, upon reading all the evidence, as reported and published, we do not perceive how an impression unfavorable to him could have been made by it upon any candid mind. The circumstances under which the evidence was collected, and the publication made, repel the presumption of the existence of malice on the part of the corporation, and so the jury should have been instructed. The averments in the declaration of the facts 40 PARTIES TO ACTIONS. damaged. The question for consideration was, in sub- stance, whether A. had suffered an injury from X. and Y., for though the form which the question 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 thj 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 proper to give the circuit court jurisdiction over the parties, are identical with those which were fully considered by this court, and received the sanction of two-thirds of the judges, in Marshall v. Baltimore and Ohio R. R. Co., i6 How. 314. A repetition of the discussion that took place and was reported with that case is deemed to be unnecessary. The only plea filed in this cause is the general issue. That plea raises an issue upon the merits of the complaint, and leaves the jurisdictional allegations without a traverse. No question involving the capacity of the parties in the cause to litigate in the circuit court can be raised before the jury under such pleadings. Conard v. Atlantic Insurance Co., i Pet. 386 ; Evans v. Gee, 11 Pet. 80; Ovvings v. WicklifFe, 17 How. 47. The testimony that the states of Delaware and Pennsylvania had respectively granted a corporate character to the same corporators that form the corporation in Maryland, for the extension of the railroad through those states, to connect the cities that appear in the name of the corporation, and the tes- timony that some of the directors of the several corporations reside in Delaware, in the condition of the pleadings, was immaterial and irrelevant. GENERA L R ULES. 4 1 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 the 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." {g) 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 {s) 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 an injury as well as a loss. A.'s right would, however, have been different had the water accumulated naturally, and not been artificially collected. (21) 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 iq) Fletcher v. Rylands, L. R. i, Ex. 279, Ex. Ch. (r) Ibid., 34 L. J. 177, Ex. ; 3 H. & C. 774- (j) Ibid., L. R. I, Ex. 265 ; 35 L. J., 154 Ex. (Ex. Ch.). (t) Ibid., L. R. 3 H. L. 230. {u) Smith V. Kenrick, 7 C. B. 515 ; 18 L. J. 172, C. P. Compare Baird v. Williamson, 33 L. J. loi, C. P. ; 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. I 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, {w) 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 ray soil, and my neighbor digs in his land so as to occasion mine to fall in, he may be liable to an action. But, it 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." {y) The owner of the land has, again, a right to support for the natural surface, as against the owner of the subja- cent strata, {2) 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 {v) Nicklin v. Willi, im^on, lo Ex. 359 ; 23 L. J. 335, Ex. ; Smith v. Thackerah, L. R. i, C. P. 564 ; 35 L. J. 276, C. P. {70) Nicklin v. Williamson, 10 Ex. 359; 23 L. J. 335, Ex. ; Smith v. Thackerah, L. R. i, C. P. 564 ; 35 !.. J. 276, C. P. (x| D xld V. Holme, i A. & E. 493 ; Wyatt v. Harrison, 3 B. and Ad. 87X. ( v) Wyatt V. Harrison, 3 B. & .^.d. 876, per Curiam. (3) Humphries v. Bro^^den, 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. {[>) Stroyan v. Knowlss, 6 H & N. 454 ; 30 L. J. 102, Ex. (<•) Chasemore v. Richards, 29 L. J., (H. L.) 81, Ex. ; 7 H. L. C. 349. GENERAL RULES. 43 flows into the plaintiff's mill-stream is fouled by 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, (h) Hence, where A. was the owner 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) I 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. The 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 Exxhequer (/) held that the plaintiffs had a right of action, i. e., had sustained an in- jury. The judges in the Exchequer Chamber {m) were {(i) Hodgkinson v. Ennor, 4 B. & S. 229 ; 32 L. J. 231, Q. B, ; and see Acton V. Blundell, 13 I.. J. 289, Ex. (A conflicting interests. In truth, the application is neither mare 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 pei-son 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 different 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 he 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." (^) But the court will set aside a release if it be manifestly shown to be fraudulent. (//) 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 ; " \t) and the release certainly can not be got rid of unless (/) Rawstorne v. Gandell, 15 M. & W. 307, per PoLLOCK, C. B. {g) Ibid. 307, 308, judgment of Parke, B. {h) Jones v. Herbert, 7 Taunt. 421. (j) Ibid., 422, per Curiam. 132 PARTIES TO ACTIONS. fraud is manifestly 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 of a release aside, the right course is now to state in an equitable riplication the grounds on which the release can be objected to. {in) 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 [ill] or covenantees the right to sue upon it both jointly and separately, {jt) A contract {d) 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 accordingly, {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." {q) For, " it is fully established . . . that one {k) Philips V. Claggett, ii M. & W. 84 ; 12 L. J. 275, Ex. (/) Ibid. ; Rawstariie v. Gandell, 15 M. & W. 304 ; 15 L. J. 291, Ex. (/«) De Pothonier v. 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 the persons must sue with whom a contract is made. See Chapter V. («) Bullen, Pleadings, 3rd ed. 471. Slingsby's Case, 5 Coke, i83 ; Brad- burn V. Botfield, 14 M. & W. 559 ; Keightley v. Watson, 3 Exch. 716, 723. io) 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 all contracts in writing. Compare Pugh v. Stringfield, 3 C. B., N. S., 2 ; 27 L. T. 34 C. P. ; 4 C. B., N. S., 364; 27 L. J. 225, C. P.; Owstonv. Ogle, 13 East, "538. Broom, Parties. 2nd ed., ss. 20, 21 ; Bullen, Pleadings, 3rd ed., 471. (/) Bullen, Pleadings, 3rd ed., 471. (^) Keightley v. Watson, 3 Exch. 726, judgment of RoLFE, B. ACTIONS ON CONTRACT. 133 and the same covenant can not be made both joint and several as regards the covenantees." (;-) One and the same covenant with A, and B. must either be a covenant with both of them jointly : i. c, a covenant with A. and B. collectively or a covenant wnth 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- rately. 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 ordinarj'^ 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. But 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 ofB. The question which arises in most of the cases illus- (;-) Bradburn v. Botfield, 14 M. & W. 573, judgment of Parke, B. (j) Lush, Practice, 3rd ed.. 222. Bradburn v. Botfield, 14 M. & W. 573, per Parke, B. It is " fully established, I conceive, by [the] cases," says Parke, B " that one and the same covenant can not be made both joint and several with the covenantees. It may be fit," he adds, " to observe that a part of Mr. Pres- ton's explanation, that by express words a covenant may be joint and several with the covenantors or covenantees, notwithstanding the interests are several, is inaccurately expressed. It is true only of the covenantors." 134 PARTIES 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; /. 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 ; /. e., all that will be looked to will be the language of the covenant ; it will be merely a question of construction. (?/) 2ndly. Whenever the words are ambiguous — /. e., capable of two constructions — regard will be had to the legal interests of the covenantees. Where the interests (t) BuUen, Pleadings, 3rd ed., 471, 472 ; Sorbbie v. Park, 12 M. & W. 154; Bradburn v. Botfield, 14 M. & W. 559. («) Keightley v. Watson, 3 Exch. 721, judgment of PoLLOCK, C. B., and Ibid., 723, judgment of Parke, 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." {a) " 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 [i 14] be joint if the interest bs 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 (l?) 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 of 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, E. {a\ Keigluley v. Watson, 3 Exch. 721, per PoLLOCK, C. B., conf. Lane v. DrinVwater, i C. M. & R. 612. (iJI See for this answer, Lush., Practice, 3rd ed., 22. {c^ Anderson v. Martindale, i East, 497. (a J Lane v. Drink Winter, 2 D. P. C. 233. 136 PARTIES TO ACTIONS. Where, on the other hand, it was agreed by a ship's husband with the owners of the ship, that after her re- turn a full account should be made of the said ship and her concerns, and the net profits be divided, after deduct- ins: all charofes, it seems to have been held that each ot the owners had a separate interest in the making out ot the account by 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. (^)^ {e) Owston v. Ogle, 13 East, 538, 540. 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. On 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 i. 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 themseWes both jointly and severally. And if there be two or more covenantees, the covenant may be entered into with them jointly 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, 501. ( g) This is merely an application to actions ex contractu of the geneial principle, that the right to bring an action can not be transferred. See Rule 6. * See ante, note. 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. (•//) 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 [116] name, (z) {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 onl}^ 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 Avhere 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." {111) Where two persons have 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 that B, could not, (li) Chit., Pleading, yth ed., 17. (?) Jones V. Carter, 15 L. J. 96, Q. B. ; 8 Q. B. 134. See further, ante, as to the effect of assignment on the right of set-off. {k) But see as to assignment of a debt by agreement between the assignor, debtor, and assignee, /cj-/. (/) Hybart v. Parker, 4 C. B., N. S., 209 ; 27 L. J. 120, C. P. (w) Radenhurst 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, (n) " 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 [117] 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 expres'sed to be with assigns as wxll as to others." {o) 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, {g) bills of lading, {f) bail bonds, is) replevin bonds, (/) administration bonds, {li) life and marine policies of insurance, {x) choses in action belonging to companies within the Companies Act, 1862. (7) {ri) Wetherell v. Langston, i Exch. 634. {o) 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) iS cS; 19 Vict. c. in, s i. (j) 4 Anne, c. 16, s. 20. (t) II Geo. IL, 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. {ti) 20 & 21 Vict. c. 77, s. 81, compared with 21 & 22 Vict. c. 95, s. 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. ( j) 25 & 26 Vict. c. 89, s. 157. ACTIONS ON CONTRACT. 139 Exception 2.— Contracts or choses in action assignable 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. ;!^ioo, and M. owes A. i^ioo, and the three meet, and it is agreed between them that X. shall pay A. the i^ioo. M's debt is extinguished, and A. may recover the sum against X. {b) 1 In a sense, such a transaction involves the assignment of 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 debt, i. e., the debt due from M. to A. {e) There must also, at *ne time of the {a) Leake, Contracts, 607, 60S. {Ij) Tatlock V. Harris, 3 T. R. iSo, per BuLLER, J. (. & S. go ; 31 L. J. 302, Q. B. («) Though he still retains a right of action against X. for a breach of his covenants. Wadham v. Marlow, 8 East, 314, n. ; Walker's Case, 2 Coke, 21 ; I Wms. Saiind. 240, 241 ; 2 Ibid, 302, note 5. {o) I Smith, L. C, 6th ed., 65-77 ; Keppel v. Bailey, 2 M. & K. 517. In re Drew's Estate, L. R. 2, Ex. 206 ; 35 L. J- S45, Ch. ; Richards v. Harper, L. R. I, Ex. igg, 205. Though the weight of authority is in favor of the view of the law expre.ssed in the text. Lord St. Leonards has expressed a decided opinion that covenants by the owners of land may run with the land. The question whether sucli covenants may not run with the land must, therefore, be con- sidered doubtful. See Sugden, Vendors and Purchasers, 14th ed„ 453, 585, 593 142 PARTIES TO ACTIONS. [i2i] Covenants with owners, i. e., for the benefit of o\\ners 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 any 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 if 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 for renewal, (q) whilst 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, /. 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 (p) Sharp V. Waterhouse, 7 E. &. B. 816 ; 27 L. J. 70, Q. B. (^) See Roe d. Bamfoid 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, {e) 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. {Ji) If A. leases to B. for twenty {e) Smith, Landlord and Tenant, 2S3. (/) The term "assignee" liar,, under 32 Hen. VIII. 3, 34, received a very extended interpretation. It incluties, for 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 executor or administrator of an a>signee (Spen- cer's Case, I Smith, L. C, 6th ed.,49); llie trustee in bankruptcy; the re- mainderman under a lease made under a power (Isher\v) Watson V. Swann, 11 C. B., N. S., 771, per Willes, J \q) Foster v. Bates, 12 M. & W. 226. 154 PARTIES TO ACTIONS. be, who legally 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 party — 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 applying 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 which either the principal or the agent may sue. (;-) Ibid., 233, per Curiam. See Tliarpe v. Stallvvard, 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. r. Leake, Contracts, 269 ; and compare 2 Arnould, Marine Insurance, 3rd ed., 1033. (j) Compare Ferguson v. Carrington, g 15. & C. 59 ; Foster v. Smith, 18 C. B. 156. Smith, Master and Servant, 2nd ed., 156, 157. (/) Bird V. Brown, 4 Exch. 786, 798. {ti] Story, Agency, s. 361. Williams v. Millington, i H. Bl. 81. (x) Depperman v. Hubbersty, 17 Q. B. 767; Coombs v. Bristol and Exeter Rail. Co., 3 H. & N. I ; 27 L. J. 269, Ex. ; Hurley v. Baker, i6 M. & W. 26; 16 L. J. 273, Ex. i^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, {z) If an agent, though in 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, ip) 1 Exceptiofi 2. — Where the agent is named as a party to a bill of exchange, &c. No person can claim upon a bill 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, &c., is assignable, id) 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. (a) Priestly v. Fernie, 34 L. J. 172, Ex.; 3 H. & C. 977 ; Schack v. Ati- thony, I M. &S. 573. Compare Appleton v. Binks, 5 East, 148. See Rule 12. (a) Berkeley V. Hardy, 5 B. & C. 355. See ante. \b) Wilks V. Back, 2 East, 142. There is, however, nothing to prevent P. executing a deed by means of A. {c) Leake, Contracts, 302. \d) Rule 15, Exception 2. Compare I Lindley, Partnership, and ed, 473. 474- 156 PARTIES TO ACTIONS. Exception 3. — Where the 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 aot 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 ; {c) 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 tc 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, {h) 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 {e\ Lucas v. De la Cour, i M. & S. 249. (/) Ibid., 250, per Ellen'BOROUGH, C. J. {g) Robson V. Drummond, 3 B. & Ad. 303. \k) Humble v. Hunter, 12 Q. B. 310 ; 17 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 {e. 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; /. 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 [/. c, the agent], or in the name of the person with whom in point of law it was made [z. c, the principal.]" (/) 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 reall}^ 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) Cothay v. Fennell, lo B. & C. 671, 672, per Curiam. {k) This case differs from those included under Exception 3, since, in those, the agent was tieated not only as a party, but as the only party to the contract, 158 PARTIES TO ACTIONS. generally 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 agent 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." {m) 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, {n) and the decision was thus explained by Blackburn, J.:- " 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 shall 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 H. & N. goy, per Bramwell, B. («) Fisher v. Marsh, 34 L. J. 177, Q. B. ; 6 B. & S. 411. PRINCIPAL 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, and 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. Exception 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, {s) 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 laile {6) Fisher v. Marsh, 34 L. J. 178, Q. B., jndgmeiit of BL'VCKRURX, J. Con trast Evans v. Evans, 3 A. & E. 132 ; and compare Higgins v. Senior, 8 M. & "W. 834; II L. J. igq, Ex. (/) Sykes v. Giles, 5 M. & W. 650, per Aiunger, C. B. {q) Offley 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. Soutlien, 21 L. 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. 6th ed., 355, (j) The expression " undisclo.sed principal " is ambiguous. It means either a principal who is known to exist, but whose name is not known to the party entering into the contract, or a principal who-^e existence is not known ; 1?.,^., where the other party conceives the agent to be himself the principal. In either 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 in sales by factors, agents, or partners, in which case either the nominal or the real plaintiff may sue, but it may be equally applied to other cases." {t) 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 right 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 in 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 deliver}^ without actual payment ; if it be otherwise the auctioneer gives credit to the vendee entirely at his own risk." (j) iLxception 7. — Where the agent has paid away money of the principal's under circumstances which gave a right to recover it back. I (t) Sims V. Bond, 5 B. & Ad. 393, per Curiam. {x) Williams v. Millington, i H. Bl. 81. A broker is not such an agent, and can not sue on contracts made by him as a broker. Fairlie v. Fenton, r L. R. 5 Ex. 169. (y) Williams v. Millington, i li. 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." {s) 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 party) to the contract or to the transaction which gives a right 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 pay. 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 [141] 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, ic) 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- (2) Story, Agency, s. 398. (a) Stevenson v. Mortimer, Cowp. 806 ifi) Exceptions, 4-7. (c) Sadler v. Leigh, 4 Camp. 194. 11 i62 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 {c.g.,2is 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) , 2ndly. 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 in an action by the real principal avail himself of defenses good against the agent. But a defendant who contracts with an agent knowing him to be only an agent, but not knowing whose agent he is, can not, in an action by the principal, avail himself of a defense good against the agent, {h) 3rdly. When an agent sues in his own name the de- fendant may avail himself of those defenses which are (d) Story, Agency, s. 403. () See Companies Act, 1862 (25 & 26 Vict. c. 89"), 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 vi^inding-up, to be considered a registered company. In re Torquay Bath Co., 32 Beav. 582. Compare 2 Lindley, Partnership, 2nd ed., 1491 and 1214. It should also be remarked that a company may be registered under the Act of 1862 for the purpose 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 Stannaries ; and iu the case of a company registered in Ireland, the Irish Court of Chancery ; and of a company registered in Scotland, the Court of Session. Companies Act, 1862, s. 81. (r) See Companies Act, 1862 (25 & 26 yict, c. 89), s. 203. Compare I 172 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 application of the i^eneral 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 {?() 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, 11 M. &. W. 77S. i Lindley, Partnership, 2nd ed., 501. {s) See Rule 13. BuUen, 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. (i) See Rule 17. Exception 5. Cothay v. Fennell, 10 B. &; C. 671. (m) I Lindley, Partnership, 2nd ed., 476, 477, Phelps v. Lyle, 10 A. & E. 113 ; Leveck v. Shafto, 2 Esp. 468. ' See ante. 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 implied, made with the firm ; for an agreement with the firm is prima facie an agreeaient 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. e., 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 in suing upon it. (j) 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. {3) 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 {x) Guidon v. Robson, 2 Camp. 302. Ccmpare Teed v. Elwoithy, 14 East, 210. (_r) Compare Teed v. Elworthy, 14 East, 210, with Kell v. Nainby, lO B. & C. 20. (s) See in the afhrmative, Collyer, Partnership, 467 ; in the negative, I Lindley, Partnership, 2nd ed., 479. Compare Bond v. Pittard, 3 M. & W. 357. {a) See Chapter XXXIV. {b) Wilsford v. Wood, i Esp. 1S2 ; Ord v. Portal, 3 Camp. 239. I Lindley, Pirtnersliip, 2nd ed., 489, 490. {c) Ibid., 490, 174 PARTIES TO ACTIONS. either expressly or by his conduct contracted to pay to the new firm of A., B., & C. the debt due to the old [153] firm of A. & 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 which an agent must or may sue on contracts made with him 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 mads 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 [cPj 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. {h) Ibid. Exception 2. Compare, however, as to the difference 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. 638 • Phelps V. Lyle, 10 A. & E. 113 ; i Lindley, Partnership, 2nd ed., 474. (i) Rule 17. Exception 3. Lucas v. De la Cour, i M. & S. 349. Compare Robson V. Drummond, 3 B. & Ad. 303 ; Humble v. Hunter, 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 firmly 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. (;;z) 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-ofif against the [155] debt due to the firm, debts due to him from A. individually. (;z) {0) (j) Skinner v. Stocks, 4 B. & Aid. 437 ; Garrett v. Handley, 4 B. & C. 664 ; Cothay v. Fennell, lO B. & C. 671 ; Alexander v. Barker, 2 C. & J. 133. See Rule 17. Exception 4. (/&) Owen V. Wilkinson, 5 C. B., N. S.. 526; 28 L. J. 3, C. P. A debt due from partners on a joint and several obligation {e. _o-., a promissory note), may always be treated as a debt due from each of the 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. Sidstone, 5 T. R. 493. («) Gordon v. Ellis, 2 C. B. 821 ; 15 L. J. 178, C. P. ; Ramazotti v. Bow^ring, 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 indebted to the firm. 176 PARTIES 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, i. e., A. would be both plaintiff and defendant ; and, as already pointed out, {u) 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, {x) nor, after A.'s death, can either firm sue the other on a contract made between them whilst he was a partner in both ; [y) 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, 2n(i ed., 87B-883. {q) Holmes v. Hi^^gins, i B. & C. 74. (r) Bovill V. Hammond, 6 B. & C. 149. I {s) Neale v. Turton, 4 Bing. 149. {t) Sadler V. Nixon, 5 B. «S: Ad. 936. (m) 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, 597- 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 empowered to sue. — These companies are merely partnerships endowed with the right of suing and being sued in the name 01 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 generall}'' 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 the way of an action by a shareholder against an unincorporated 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 (s) Moffat V. Van Millingen, 2 B. & P. 124. The rule applies to persons who are partners in a particular venture. {a) 2 Lindley, Partnership, 2nd ed., 85S. Hichens v. Congreve, 4 Russ. 562 ; McMahon v. Upton, 2 Sim. 473 ; Hughes v. Thorpe, 5 M. & W. 656. ((5) 2 Lindley, Partnership, 2nd ed., 858. Wills v. Sutherland, 4 Ex. 211 ; 18 L. J. 450, Ex. ; 5 Ex. 980 ; 20 L. J. 28 Ex. (Ex. Ch.) ; Reddish v. Pinnock. 10 Ex. 213 ; Smith v. Goldsworthy, 4 Q. B. 430 ; 11 L. J. 151, Q. B. ; Chapman V. Milvain, 5 Ex. 61 ; 19 L. J. 228, Ex. It is settled that one public officer of a banking company under 7 Geo. 4, c. 46, is the proper person to sue a share- holder for calls. 2 Lindley, Partnership, 2nd ed., 858. {c) 2 Lindley, Partnership, 2nd ed., 888, 889. The difficulty as to executing the judgment seems to apply to all 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) Exceptio7i 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, {i) 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 ((/) 2 Lindley, Partnership, 2nd ed., 873, 875. (,f) McNeill V. Reid, 9 Bing. 68 ; Gale v. Leckie, 2 Stark. 107 , Andrews v. Garstin, 10 C. B., N. S., 444 ; 31 L. J. 15, C. P. Compare Lindley, Partner- ship, 2nd ed., 8.63, 864. (/) See Lindley, Partnership, 2nd ed., S69, 870 ; BuUen, Pleadings, 3rd ed., 229. {g) Owston V. O.f^le, 13 East, 538. ih) Bedford v. Brutton, i B. N. C. 399. (i) Want V. Reece, i Bing. 18 ; 2 Lindley, 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, [in) 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 the amount of the valuation ; () Wilkinson v. Gibson, L. R. 4, Ex. 162, 167. (2) Compare Johnson v. Lander, L. R. 7, Eq. 228. {a) Burrough v. Moss. lO B. & C. 558 ; Field v. Allen, q M. & W. 694 ; Lush, Practice, 3rd ed., 46. She can not contract debts during coverture. {b) McNeilage v. Holloway, I B. & Aid. 218 ; Gaters v. Madeley, 6 M. & W. 423 ; Richards v. Richards, 2 B. & Ad. 447 ; I Williams, Executors, 6th ed., 794, 797. {d) Bullen, Pleadings, 3rd ed., 171. But see Bright, Husband and Wife, 64. ' See two preceding notes. 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, [f) A wife, that is to say, can not contract, but she may be contracted with, in so far that she may receive rights under a contract. Hence, where a promise is made to a married woman on a con- sideration 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 {e) T Williams, Executors, 6th ed., 798. (/) Ibid., 794 ; Dalton v. Midland Rail. Co., 13 C. B. 474, 47S ; 22 L. J 177, 178, C. P. g) Bidgood V. Way, 2 W. Bl. 1236 ; Dalton v. Midland Rail. Co., 13 C. B. 474 ; 22 L. J. 177. C. P. {h Day v. Padrone, 2 M. & S. 396, n. {b) ; Ankerstein v. Clarke, 4 T. R. 616. {i) Philliskirk v. Pluckwell, 2 M. & S. 393 ; Howard Burrough v. Moss, 10 B. & C. 558 ; BuUen, Pleadings, 3- 202 PARTIES TO ACTIONS with a wife by word of mouth, {k) It is more difficult to prove that such a contract was made with the wife, and, it must be remembered, that in order 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 jc>in in an action for the worth of her labor, inasmuch 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, (;;/) or ma}' 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, (o) 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 Cl'easby, B., L. R., 4 Q. B. 507, 508. (/i Brashford v. Buckint^ham, i Cro. Jac. 77. (i)i) Ankerstein v. Clarke, 4 T. R. 616. (w) PhiUiskirk V. Pluckwell, 2 M. & S. 393. (o) I Selwyn, N. P., 13th ed., 249 ; i Williams, Executors, 6th ed., 80S. If, when an action is brought by the husband and 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 him, 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. (/) Effect of Divorce. {q)—Vi 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, if) Set-off.— ^here 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-off. Where a husband sues in his own name and in that of 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. {p) These statements do not apply when the chose in action has been re- duced into possession, and, theiefoie, 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 possession. They do not apply to negotiable instruments given to the wife before marriage, which, except as regards the fact that ths husband may sue upon them alone, stand in the same position as other contracts made with the wife before marriage. {q) A doubt may (it is conceived) exist as to the effect of divorce on a con- tract made with the husband and wife, {r) See ante. 204 PARTIES TO ACTIONS. To put the same thing in a different 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 (J) or may {ti) 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 Juisband sues alone where the wife must be joined, 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, {v) 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 ludgment, or error. If it transpires at the trial, it will be (j) See Lush, Practice, 3rd ed., 46, 47. (/) Rule 30. (ii) 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 zuife sites alone where she either must or may be joined, the only result is to expose her to a plea in abate- vient. — 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, {x) ■^. If a husband sues zvith his zuife. where she neither must nor 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 (/) Rule 33. — Where a husband is bankrupt and the trustee in bankruptcy sues in the right 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 (zy) Bullen, Pleadings, 3rd ed., 171. (x) Ibid. ; Dalton v. Midland Rail. Co., 13 C. B. 474 ; 22 L. J. 177, C. P. {y) See Bolingbroke v. Kerr, L. R. i, Ex. 222, 223, and Chapter XXXIV. In all cases, except those enumerated, the husband must sue alone on contracts made with the wife. Such contracts are, in fact, not contracts with her, but contracts made with her husband through her as his agent. If a wife sues alone in a case where she can not be joined as plaintiff, she is suing without any cause of action, and must fail. («) See Chapter IX., post. 2o6 PARTIES TO ACTIONS. 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 [1 88] 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 by the bankruptcy, and she is the person to sue for its breach. {a) Sherrington v. Yates, I2 M. & W. S55 ; 13 L. J. 249, Ex. \b) Richbell v. Alexander, 30 L. J. 26S, C. P. ; 10 C. B., N. S 324. (c) See Roper, Husband and Wife, 2nd ed., 232. BANKRUPT AND TRUSTEE. 207 CHAPTER IX. BANKRUPT AND TRUSTEE. Rule 34. — The trustee (^)of the property of 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 former Acts an assignee, and under the present Act 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 adjudication 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." id) The term property is, for the purposes of the Act, (a) " The trustee of the property of a bankrupt " [who is, in subsequent rules called the " trustee "j occupies the position of the assignees in bankruptcy under Bankruptcy Acts prior to the Bankruptcy Act, i86g. This must be borne in mind, since in all the hitherto decided cases the expression " assignee," or " assignees," is used, and is therefore, for the sake of convenience, frequently employed in the explanation of this and other rules contained in the chapters on bankrupts. {b) Smith V. Coffin, 2 H. Bl. 462, judgment of Bui.LF.R, J. Compare Rogers V. Spence, 13 M. & W. 571. 5S1, judgment r-.f Denman, C. j. (c) Bankruptcy Act, i86g, s. 17. (d) Bankruptcy Act, 1869, s. 25, cl. 3. 2o8 PARTIES TO ACTIONS. given a wide sense, being defined to mean and include "money, goods, things in action, land, and every descrip- tion of property, whether real or personal; also obliga- tions, easements, and every description of estate, interest, and profit present or future, vested or contingent, arising out of property as above defined." {c) 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 {g) transfers or assigns to the trustee all the rights of the bankrupt under contracts with him 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 {k) 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 who 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 bv the bankrupt, forms a condition precedent to the doing of the act which the contracting party has agreed to do, there, unless the money is paid or dutj 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) Ibid., s. 4. {/) Ibid., s. 15. Compare s. il. ( ^) Conf. Rogers v. Spence, 13 M. & W. 571, 580, judgment of DenmaN, c. y. {h) Wright V. Fairfield, 2 B. & Ad. 727. (z) 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 v Wace, ] Camp. 587. (/) Gibbon V. Carruthers, 8 M. & W. 321 ; II I-. J. 138, Ex. BANKRUPT AND TRUSTEE. 209 exists on the other party to perform his part of the en- gagement." {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 may 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. {o\ 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. (^) The right of a trustee to sue on all contracts made with the bankrupt is subject to the limitation that he can (w) Gibson v. Carruther'-, 3 M. & W. 333, per Parke, B. («) Ibid., 327, judgment of RoLFE, B. {d) Ibid., 321 ; n I.. J. 138, Ex. ; Bankruptcy Act, 1S69, ss. 23, 24. (/) Bnnkruptcy Act, '86fy, s. 23. (H) Hillary v. Morris, i C. & P. 6. 14 210 PARTIES TO ACTIONS. not sue on any contract in which the bankrupt has not both a legal and also a beneficial 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, an)' 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, 1869, s. 15. (/) D'Arnay v. Chesneau 13 M. & W. 7g6, 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. 2H 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. {21) 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 hj.d parted with all his equitable interest in it. {x) Exception i [y). — Contracts, the breach of wllcli involves injury to the person or to the feelings ol the baT.krupt. Though " the general principle is, tnat all rights [194] of the bankrupt which can be exercised benehcially for the creditors . . . pass [to the assignees], and the right to recover damages may pass, though they are un- («) Bankruptcy Act, 1S69, s. 15. (jr) Compare Bankruptcy Act, 1869, ss. 11, 15, 95. {y) The words of the Bankruptcy Act, 1S69, transferrinc; to the trustee the property of the bankrupt, are considerably wider than the expressions employed in the corresponding sections of eailier Bankruptcy Acts (compare Bankrup'cy Act, i86g, ss. 4, 15, and 17, with Bankruptcy Act, 1849, ^- 141). ^-nd distincily pass to the trustee the ban]\nipt's tilings in action, under which term may be included all the bankrupt's rigtits of action whatever, whether 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 absence of decisions, be considered as established, that where the assignees could not sue under the former Acts, the trustee can not sue under the 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 douiit. 212 PARTIES TO ACTIONS. liquidated, this principle is subject to exception. The right of action does not pass where the damages 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 of property. Thus it has been laid down that the assignees cin not sue for breach of promise of marriage, for seduction, defama- tion, battery, injury to the person by neghgence, as by not carrying safely, not curing, not saving from imprison- ment by process of law." {z) To express the same thing somewhat differently, " there are some exceptions to the generalit)^ 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 b}" breach of contract oi 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, {b) Exception 2. — Contracts uncompleted nt the time of bank- ruptcy in which the personal servnce 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 {c. g., a contract by the (c) Beckham v. Drake, 2 H. L. C. 603, 604, opinion of Eri.e, C. J- On the question, how far ~uch an action is one for breach of contract, see a7tte. {(j) Ibid., 617, opinion of WlGllTMAN, J. (b) I Griffith & Holmes, ISankrupicy, 303 ; Bankruptcy Act, 1S69, s. 15 ; cl. 3, s. II. (f) Leake, Contracts, 64Q. 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 part. " There is a certain class of contracts in which it is 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 partneishi) 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." [c) " 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, c. g., write a book or paint a picture, a d compel the other party to perform his part of the cor-- tract by paying for the book or picture. The matter of doubt is, whether an action against the purchaser ought to be brought by 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. Canuthers, 8 M. & W. 343, judgment of Lord AuiNGER C. B. (/) Beckham v. Drake, 2 II. L, C 598, opini'^u af Williams, J. 2E4 PARTIES TO ACTIONS. part. It would, however, seem that under the former Banlcruptcy Acts the bankrupt was the right pers'^n to sue far 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 thai 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 ; [g) but in this case the contract was broken before the bank- ruptcy. Where an order was given to build a house, and tlie 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 b)'' 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 assignees as part of the personal estate, without regard to the con- i.g) Ibid., 579. (t) Whitmcire v. Gilmour, T2 M. & W. 808, 810. (k) Knight V. IJurgcss, 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 [198] 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, (n) The remarks as to the right of the trustee to sue on conti-acts 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. {0) The right of a bankrupt to sue on contracts made with him during the continuance of 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. (/) (/) Beckham v. Drake, 2 H. L. C. 632, 633, per Wilde, C. J. {m) Bankruptcy Act, 1869, s. 4. (n) Herbert v. Sayer, 5 Q. B. 965 ; Kitchen v. Bartsch, 7 East, 53; Mor- gan V. Knight, 33 L. J. 168, C. P. ; 15 C. B., N. S., 669; 2 Griffith & Holmes, Bankruptcy, 934. {0) Bankruptcy Act, 1869, ss. 4, 15. (p) Herbert v. Sayer, 5 Q. B. 965 ; esp. judgment of Ex. Ch. 981. Com* pare Jackson v, Buinham, 22 L. J. 13, Ex. ; 8 Ex. 172. 2i6 PARTIES TO ACTIONS. The cases which establish this right 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 tlie 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 to 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 {(J) Herbert v. Sayer, 5 Q. B. 965 ; Kitchen v. Bartsch, 7 East, 53. (r) See ante. \s) Beckham v. Drake, 2 H. L. C. 633. (/) Chippendale v. Tomlinson, 7 East, 57, note {g) ; Silk v. Osborn, I Esp. 140 ; Crofton v. Poole, I 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 L. J. 217, Q. B. BANKRUPT AND TRUSTER. 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, {s) 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, {b) and in part upon the Bankruptcy Act, 1869, s. 39, which re-enacts and ex- tends the Bankru'Dtcy 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-ofl as against a bankrupt's trustee should be noted. 1st. 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 {y) Crofton v. Foole, i B. & Ad. 56S. {z) Silk V. Osborn, i Esp. 140 ; Evans v. Brown, Tbid., T70. (rt) "Where there have been mutual credits, mutual debts, or other mutual dealings 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 respect of such mutual dealings ; and the sum due from the one party shall be set-off against any sum due from the other party, and the balance of such account, and no more, shall be claimed or paid 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, 1S69, s. 39. Compare with this, Bankruptcy Act, 1849, s. 171 (b) 2 Geo. II., c. 22, s. 13. {c) See I Griffith & Holmes, Bankruptcy, 2nd ed., 628. 2T? PARTIES TO ACTIONS. credits which have a natural tendency to terminate in debts, not in claims diflfering 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] 3rdl3^ All debts and demands may be set-off which are proveable against the bankrupt's estate. (/) 4thly. Notice of an act of bankruptcy is the point at which the right of set-off terminates, i. e., the defendant can not set-off credit which he has given to the bankrupt after notics 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, (z) Nor does the statute apply where the bankrupt sues as a trustee, {k) Rule 36. — Actions on contracts made with the bankrupt after the " close of the bankruptcy " (/) must be brought by the bankrupt. (d) Rose V. Mart, 2 Smith, L. C, 6th ed., 267, 276. {e) Beckwith v. Bullen, 27 L. J. 162, Q. B. ; 8 E. & B. 6S3 ; BuUen, Plead- ings, 3rd ed.. 68r. (/) Rose V. Hart, 2 Smith, L. C, 6th ed., 267, 285. This, at least, was the case under the former Bankruptcy Act (Bankrupt Law Con.solidation Act, 1849, s. 71;. The language of the Bankruptcy Act, 1869, s. 39, does not make it clear 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 ca« 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. Ui) Hulme v. Muggleston, 3 AL & W. 30; Bittleston v. Timmins, i C, B. 389- (/) Wood V. Smith, 4 M. & W. 522 ; Bullen, Pleadings, 3rd ed., 682. \k) Boyd V. Mangles, 16 AL & W. 337. (/) Bankruptcy Act, 1S69, s. 47. . BANKRUPT AND TRUSTEE. 219 When the whole property of the bankrupt has been realized for the benefit of his creditors, or certain other events, more particularly described in the [202J 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. (/) Aftei- the close of the bankruptcy, {in) 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 himseh'. 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. {0) Rule 2^7^ — 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." {q) 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. (;;/) And in some cases l^efme it. Bankruptcy Act, l86g, s. 48. (;/) Bankruptcy Act, 1869, s. 54. (e 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 tiu-tee under liquidation shall, according to circumstances, be deemed tn be equixalent to, and a substitute for, the presentation of a petiiion in bankruptcy, or tlie service of such petition, or an order of adjudication in bankruptcy." Lank- ruptcy Act, 1869, s, 125, cL 7. 222 PARTIES TO ACTIONS. CHAPTER X. EXECUTORS, ADMINISTRATORS, AND HEIRS. Rule 41. — The personal representatives of a deceased person (J. e., his executors or administra- tors) can sue on all contracts of whatever description made 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, /. 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 liabilities and stand 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 liabilities 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 pnd administrators are, speaking generally, the same. The executor is a representative appointed by the will ; {he administrator is the represent ative generally of an intestate, and appointed by letters of administration issued by the Ct.urt of Probate. See as to an ad- ministrator cum testamento annexe, i Williams, Executors, 6th ed., 490. (b) Compare 2 Williams, Executors, 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, (d) Therefore it is clear that an executor or administrator shall have actions to recover debts of every description due to the deceased, either debts of 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 cl»ar that in many cases an action on which the deceased himself 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 of 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) Raymond v. Fitch, 2 C. M. & R. 596, 597, judgment of TiNDAL, C. J. ; Broom, Maxims, 4th ed., 870, 871. (d) The right of executors to sue is extended to administrators by statute, 3T Edw. III., s. I, c. II. (e) I Williams, Executors, 6th ed., 739, 740. (/) Ibid., 827. (g) See a/i/e ; Knights v. Quarles, 2 B. & B. 102 ; 4 Moo. 532. See Alton V. Midland Rail. Co., 19 C. B., N. S. 213 ; 34 L. J. 292, C. P 224 PARTIES TO ACTIONS. cause of action accrued during- M.'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 {h) 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 assig-nee 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 prom.ise 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 ; {J) and so, if X. binds him- self to M. to pay a certain sum of money to M. or [208J 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 Williams, Executors, 6th ed., 742 ; Com. Die:., Administrator (B. 13). (y) Devon v. Pawlett, Xi Vin. Abr. [33, pi. 27 ; i Williams, Executors, 7th cd., 740. {k) S. P. FitE., N. B , 120, I., gih ed. ; r Williams, Executors, 6th ed, 741. {I) Ibid., 759, 76c; Rules 10, ii. EXECUTORS AND ADMINISTRATORS. 225 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, {it) " for executors and administrators are the representatives of the temporal propert}^ 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." (o) " 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, actions for injuries to the person." (/) If a breach of contract affects, not only the person of the deceased, but his personal estate also, the executor can sue for the consequential damage, {g) 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 insutficient title, whereby his personal estate was injured, 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 perhaps the intestate might have brought case, (r)or assumpsit, is) {ill) Conf. ante. («) Chamberlain v. Williamson, 2 M. & S. 40S. {o) Ibid., 415, judgment of Ellenborough, C. J. (p) I Williams, Executors, 6th ed., 753. Kq) Broom, Maxims, 4th ed., S71, S72 ; i Williams, Executors, 6th ed., 751. 752. (r) I. e., an action for tort, see ante. (j) /. e., an action for breach 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 of improving his personal property were destroyed, and that property 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." {ti) 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) {:) 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, {t) See anU. lu) Knights v. Quarles, 2 B. & B. 104, 105. An action, might, perhaps, be 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 iSl. & W. 846, 854, compared with Alton v. Midland Rail. Co., 34 L. J. 292, C. P. ; 19 C. B., N. S. 213. See as to actions by executors where the deceased has been killed through negligence of the defendant. Chapter XXIV. iv) 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 perfi)rmance of which depends upon the skill or talent of a particular person. All contracts, again, of 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, {£) 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. {l)\ 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 the deceased. ' Covenants real," as the term is here used, (/} mean ( v) 2 Williams, Executors, 6th ed., 1593, n. (t). 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, M. C. {a\ 2 Williams, Executors, 6th ed., 1631. (b) Companari v. Woodburn, 15 C. B, 400 ; 24 L. J. 13, C. P. (c) Farrow V. Wilson, L. R. 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 (see Stubbs v. Holywell Rail. 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 to give rights to, or impose lia- bilities upon, the representatives of the deceased (Cooper v. Simmons, 7 H. & 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 freehold. 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, {Ji) 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, {i) 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 conve3-ance 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." {Ji) 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 affect 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). i g) T Willi?ms, Executors, 6th ed., 753, 754 {Ji) See ante. \i) Raymond v. Fitch, 2 C. M. & R. 596, judgment of Lord Abinger, C. B. ; Kingdon v. Nottle, i M. & S. 355. (/) Kingdon v. Nottle, i M. & S. 355. {k) Leake, Contracts, 639 ; and see Kingdon v. Nottle, 4 M. & S. 53. EXECUTORS AND ADMINISTRATORS. 229 in respect of any damage caused thereby to the personal estate. (/) On a " collateral 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 cove- 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 ; («) 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 : — M., 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- (/) Leake, Contracts, 639, 640 ; Kingdon v. Nottle, i M. & S. 355, 364 • 4 Ibid., 53. 57 ; Knights v. Quarles, 2 B. & B. 102, 105 ; i \\'illiams, Executors, 6th ed., 757. {hi) Raymond v. Fitcli, 2 C. M. & R. 5S8. Compare Ricketts v. Weavei. 12 M. & W. 718. (n) Mackay V. ^^ackreth, 2 Chit. 461. (p) 1 Williams, Executors, 6th ed., 761. 230 PARTIES TO ACTIONS, son, prima facie, to sue is the heir, but the executor can sue if he can show damage resulting to the personal estate of M. Again, M. is possessed of an estate for years, and X. has 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. Lastly, X. has entered into a covenant with M., the deceased, which is not of a kind to run with the land ; 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- (q) Ibid., 771. EXECUTORS AND ADMLWISTRATORS. 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. {/) SUBORDINATE RULE I. An executor can covimcncc an action before probate ; but an administrator can not couiuicnce 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, {ic) 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, {y) 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. {3) But if an administrator commences (*■} See Rule i6 for explanation. (■r) Williams, Executors, 6th ed., 595, 6ot. (0 Ibid., 389, 596. (it) See, howevei-, as to actions grounded on actual possession, Chapter XIX. (;') I Williams, Executors, 6th ed., 296. (z) If, however, an executor commences an action before probate, the de- fendant may apply to the court to stay proceedings until probate is taken oiif and notice thereof given to the defendant ^Webb v. AtVins, 14 C. B. 401 ; 23 L. J. 96, C. P.). 232 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 adjninistrator. 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., 389, 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. ' 4 Id. ; Emmerson v. Blakely, 2 Abb. App. Dec. 22; and see § 121, N. Y. Code of Procedure; and, under the pro- vision of this section, that, after verdict in an action for a wrong, the action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action survives, an action for a purely personal wrong does not abate by the death of a plaintiff, after a verdict in his favor. The verdict becomes property which passes to the representatives of the deceased, as a judgment would at c':)mraon law. If set aside after the death of the party, the 1 epresentative may prosecute such appeal as the law allows, for the purpose of having it restored. He is not, in such a case, prosecuting an action for the original tort, btit is endeavoring to save and restore the verdict. The right to appeal from the decision granting the new trial, and to pro- ceed for the purpose of restoring the verdict, can be held to pass to the personal represeijtatives, on the same principle upon which the right to enforce the verdict passes to them. Wood V. Phillips, 1 1 Abb. Pr. (N. S.) i. 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 parties thereto, except an action for libel or slander, . . . which shall abate by the death of the defendant," an action for slan- der d'tes not abate by the death of the plaintiff during its pen- dency Alpin V. Merton, 21 Ohio St. 536. EXECUTORS AND ADMINISTRATORS. 233 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 rale, 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 judgment, 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.^ (r) See Exceptions I and 3, ante. {d) Palmer v. Cohen, 2 1!. & Ad. q66 ; Kramer v. Waymaik, L. R. i, Ex. 241. See generally, Day, C. L. P. Acts, 3rd ed., 115- 121. ' If a suit is brouglit in the name of a nominal party, it is not necessary to revive it (in case of his death) in his per- sonal representative, but at the suggestlcjn of the death of the nominal party the suit will proceed in the name of the real party. Chirk v. Hopkins, 34 Tex. 139. . ^ Cooley v. Brown, 30 Iowa, 470; and see Farnham v. Mal- lory, 2 Abb. App. Dec. 100; Smith v. Britton, 45 How. Pr. 428. ' See Brown v. Lewis, 9 R. I. 497 ; and under the Mis- sissippi practice, Eckford v. Hogan, 44 Miss. 398; Cool v. Higgins, 23 N. J. Eq. 30. 234 PARTIES TO ACTIONS. When the cause of action {e) 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. (?) [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 in cases where the consideration flows directly from him- self as executor. Thus an executor may declare as such not only on an account stated with him as executor con- cerning money due to the testator from the defendant, {e) See ajtfe if) Bullen, Pleadings, 3rd ed., 153; 2 Williams, Executors, 6th ed., 1727. {.?) Ibid. {k) Ibid. (z) But see Gallant v. Boutflower, 3 Doug. 34. (/) Bullen, Pleadings, 3rd ed., 153. ' Eckford v. Hogan, 44 Miss. 398. An administrator, whether foreign or domestic, may sue in his own name upon a note payable to bearer, even though such note was trans- ferred to his intestate in the latter's lifetime. The mere pro- duction of the note, in such action, will entitle him to judg- ment, and he need not allege, nor if he allege, need he prove the source from which he derived the note. Sandl'ord v. McCreery, 28 Wis. 103. An administrator de bonis non and cum testamento annexo can sue the representatives of his predecessor for assets actually converted. Parrish v. Brooks, 4 Brews. (Pa.) 154 ; and consult Lathan v. Blakemore, 4 Heisk, 276 ; Davis V. Fox, 69 N. C. 435. EXECUTORS AND ADMINISTRATORS. 235 but also on an account stated with him as executor con- cerning money due to him as executor, and may 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; (/;/) and so where a coat had been ordered by the defendant of a tailor, and had been cut out and tacked together 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 of 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) j 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 must describe the money claimed, not as money due to M., but as money due to himself as executor. Set-off. — ist. In an action by an executor or adminis- trator, as such, for debts due to the deceased, the defend- {m) Marshall v. Broadhurst, i C. & J. 403 ; Edward v. Grace, 2 M. & W. 190. (;/) Werner v. Humphreys, 2 M. & G. 853 ; 10 L. J- 214, C. P. See i Wil- liams, Executors, 6th ed., 823-S27. If an executor continues to carry on the business of the deceased, and enters into contracts in the course of doing so, it would seem that he can not sue in his representative character, but must sue ia his own right. Bolingbroke v. Kerr, L. R. i, Ex. 222. -30 PARTIES TO ACTIONS. ant can set-off debts due to him from the deceased, but can not set-off 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, &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 plamtiff. {q) SUBORDINATE RULE. An executor or administrator can not join claims made in his representative ivith 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 219J bad, or, in other words, demurrable, {s) Ife 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. (/) An executor, when he sues in his own name, can join any claim which he makes as an individual. Rule 43. — Co-executors (?0 o^ co-administrators {x) must all join as plaintiffs in an action, (p) 2 Williams, Executors, 6th ed.. 1732, 1S03 ; Rees v. Watts, II Exch. 410 ; 25 L. J. 30, Ex. (Ex. Ch ) ; Watts v. Rees. 9 Exch. 698 ; 23 L. J. 238, Ex. J Scholfield v. Corbett, 11 Q B 779; Tegetmeyer v. Lumley, Willes. 264, n. (ij) Bulleii, Pleadings, 3rd ed., 153. (j) 2 Wms. Saund. 117 e ; Bullen, Pleadings 3rd ed., 152; Davies v. Davies, i H. & C. 451 ; 3i L- J- 476, Ex. ; 2 Williams, Executors, 6th ed, 1729. (0 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., S95, \x) Ibid.. 852. EXECUTORS AND ADMINISTRATORS. 237 Co-executors have community of interest in the goods, or personal property, of the deceased, and therefore must all join in suing, even though some be infants {y) or bankrupts, h) 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 cdn take advantage of the error by a plea in abatement ouIn (c) E'>:.puoii I. — Wliere a contract is made with sotue of sev- eral co-<.^ecutol■s only. If a V Mitract is made with some alone of several co- executors those only can sue on the contract with whom it ii i/iade. 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. {e) 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 tlie executor- ship. Under 20 & 21 Vict. cap. TJ, s. 79, an executor may renounce probate. When he has done this he can not, (r) Smith v. Smith, Yelv. 130. (s) Compare I Williams, ExeciUors, 6th ed., 226, 227 (rt) Brookes v. Stroud, i Saik. 3 ; 2 Williams, Executors, 6th ed., 894. (l>) See ante. (es, e. ^., where tiie defend- ant joined is bankrupt, or is protected by the Statutes of Limitaiion, he will fail in his action as against such defendant. In the sixth case the plaintiff must not join the person, jr., the infant, or married woman, whom he can not be compelled to join as a defendant ; for the joinder of such infant, or married 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 either jointly or separately, (zc) [234] Covenantors and other contractors may, by the same covenant or contract, bind themselves at once jointly and severally, 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 by a joint and several bond or promissory note. The plaintiff ma}' 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. (j) Rule 51. — The liability to an action on contract can not be transferred or assip-ned. ^fe' 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 aeainst 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 several covenant of X., Y., and Z., but upon an independent cove- nant by X. and Y. (rtj I'. ale 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, {p) Exception i.— Where there is a change of credit by an [23 5 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 creditor. But this is not so, since it is demonstrable that the sole {b) Chapter XIII. (^) Tatlock V. Harris, 3 T. R. 17;, 180 ; Cuxon v. Chadley, 3 B. & C. 591. Compare, as to assignment of ri-ht of action by agreement between the parlies, anU ; Wilson v. Coupland, 5 B. & Aid. 228. (cl) For the nature of a firm, see ante. {e) Hart v. Alexander, 2 M. & W. 484 ; Rolfe v. Flower, L. R. I, P. C. 27. (/) Lyth V. Ault, 7 Exch. 669. {g) See atiU. 254 PARTIES TO ACTIONS. security of X. may be a better thing than the joint security of X. and Y. {h) [236] An assignment of this kind can take place only by agreement among all the parties, (/) 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 leasee which run with the land. Where such covenants are made by a lessor, the liabiHty 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 express Ui) Lyth V. Ault, 7 Ex. 672, judgment of Pollock, C. B. ; Ibid. 674, judg- ment of Alderso.n, 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 liabiliiy passes on his death to his representatives, and is enforcealjle 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. {i) Hodgson v. Anderson, 2 B. & C. 842, S55. (/■) See ante. (/) "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. Vin., c. 24) ;" Smith, Landlord and Tenant, 293, note 19. Conf. Bullen, Pleadings, 3id ed., 63S ; Bickfe:d v. Parson, 5 C. B. 920. ACTIONS ON CONTRACT. 255 covenants devolves upon his executor, (in) In other words, the lessee continues liable to the lessor on express covenants in the lease, even though they are covenants w,hich 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. {71) The lessee is not, however, liable after an assignment of his term to an assignee of the revei-sion, i. 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, {o) 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 in 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. {g) 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 {ni) Lenke, Contracts, 629 ; Thursby v. Plant, l Wms. Saund.. 240 a ; Auriol V. Mills. 4 T. R. 94, 98. (m) Bullen, Pleadings, ^rd ed., 637. " When the lessee assigns his estate, the privity of estate is transferred to the assignee, the lessee still remaining liable npon his privity of contract." Smith, Landlord and Tenant, 293, note 19. {o) Wadham v. Marlow, S East, 314, n. ; I Wms. Saund. 240, 241 c ; 2 Ibid. 202, n. 5 ; Leake, Contracts, 629. (/) Green v. James, 6 M. & \V. 656 ; i Smith, L. C, 6th ed., 61. [(/) ILarley v. King, 2 C. II. & R. 18 ; Taylor v Shum, i B. & P. 21 ; Sjiencer's Case, I S. L. C, 6tli ed., 45, 60. {?) Coward v. Gregory L. R. 2, C. P. 153 ; 36 L. J. i. C. P. 256 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 Uabihty to be sued upon the contract passes, on the [238] death of Z., to X. and Y. ; on the subsequent death of Y., to X. ; and on the death of X. (provided the habihty to be sued survives), (/) 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. {s) Compare Rule 16. (0 Chapter XVIII. 'See Lansdall v. Cox, 7 J. J. Marsh. 391. PRINCIPAL AND AGENT. 257 CHAPTER Xir. PRINCIPAL AND AGENT. Rule 53. — A contract entered into by a princi- pal, (a) througii 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 {U) after, they are done. The main difficulty in fixing ojie 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, /. e., that he is in law the agent of the alleged principal. The principle 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. {c) ante, as to the use of the letters P. A. and T. throughout this chapter. {b) For ratification, see ante. {c) 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 sometimes 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 thus 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 the 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 P. apparently given A. ? What has he suffered third parties to believe respecting A.'s position and powers ? Story, Agency, s, 127, n. (l) ; Byles on Bills, 8th ed., 29. 17 2 58 PARTIES TO ACTIONS. [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, tne 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 lie has intended to empower him. The authority of an agent is either express or implied. It is termed express or actual authority w^ien the agent derives authority expressly, i. e., by writing or word 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 mouth, 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 [241] 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." (/") () Hazard v. Treadwell, I Str. 506. 262 PARTIES TO ACTIONS., though the servant kept the money, 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 suffer for the cheats of his servant than stran- gers or tradesmen." {g) P., a jeweler, kept a shop in 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 carried away with 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, althouofh 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, the 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) Wailand's Case, 3 Salk. 234, per Holt, C. J. (r) Summers v. Solomon, 26 L. J. 301, Q. B. ; 7 E. & B. S79. Bramwell, B., doffs not assent to the law of this case. 3 H. & N. 794. {s) Summers v. Solomon, 26 L. J. 302, Q. B., judgment of CoLERIDGE, C.J. (t) Helyear v. Hawke, 5 Esp. 72. lu) Alexander v. Gibson, 2 Camp. 555. PRINCIPAL AND AGENT, 263 press orders not to warrant, (j/) and though, apparently, 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 the horse, but it was held that P. was not bound by this warranty, {p) These cases exactly illustrate the principle on which a person who employs an agent to act for him is bound as regards third persons by the authority which the agent appears 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) Howard v. Sheward, L. R. 2, C. P. 148 ; 36 L. J. 42, C. P. (2) Brady v. Todd. 30 L. J. 223, C. P. ; 9 C. B., N. S., 592. (d) Howard v. Sheward, L. R. 2, C. P. 151, judgment ofW^lLLES, J. Com pare Fenn v. Harrison, 3 T. R. 759, 760. 264 PARTIES TO ACTIONS. A., the servant of P., had authority to draw bills of exchansre 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 world 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 (3) V. Harrison, I2 Mod. 346, per HoLT, C. J. {c) Ward V. Evans, 2 Ld. Raym. 928. (^) Howard V. Braithwaite, i Yes. & B. 209; Smith, Master and Servant, 2nd ed., 168 ; Baines v. Ewing, L. R. i, Ex. 323, judgment of Bramwei.i., 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 (Smith V. McGuire, 27 L. J. 467, 469, Ex. ; judgment of Pollock, C. B.). 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 yicccssary. — A 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 [248J 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 another 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 from disputing it." {g) Hence, w^here a master has not, either expressly or by (_/") See anie. {g) Pole V. Leask, 33 L. J. i6r, 162, Ch., judgment of Lord CraNWORTH. 266 PARTIES TO ACTIONS. implication, authorized his servant to pledge his credit, his servant can not, by doing so, render him liable to pay for 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, (h) 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 durmg 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 plaintiff's 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 of honor, pay for them, no contract was thereby created \]^ith any one." {i) Actions against clubs. — The liability of members of ordinary clubs, of provisional committees, of volunteer corps, and of other voluntary associations which are not 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. & \Y. 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." {ijt) 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 of his membership, be sued for the price of goods supplied to the steward according to the order of [250] the committee. {11) It seems also settled that the individual 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. {p) 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 Alderson, B., " that as the members of a club generally are to be considered as not having au- thorized anybody to deal with them upon credit, so here (ni) Flemyng v. Hector, 2 M. & W. 183, judgment of Parke, B. \n) Flemyng v. Hector, 2 M. & W, 172. Compare Cockerell v. Aucompte, 26 L. J. 194, C. P. ; 2 C. B., N. S., 440. {p) Todd V. Emly, 7 M. & W. 405. 268 PARTIES TO ACTIONS. the committee were authorized only to deal as a body fof 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." \^p) 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 for it. {q) As, however, the reason why individual mem- bers of a club are not liable for the price of goods sup- phed to the club is that the rules of subscription clubs ordinarily show that it is not the intention of the mem- bers that the deaHng 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, {t) or of a pro- visional 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. \q) Ibid., 505. {r) See Todd v. Emly, 7 M. & W. 432, judgment of Abinger, C. B. (/) Cockerell v. Aucompte, 26 L. J. 194, C. P. ; 2 C. B., N. S., 440. (/) Cross V. Williams, 7 H. & N. 675 ; 31 L. J. 145. Ex. ' See Wharton on Agency and Agents, § 461; Story on Agency, § 287. In Devoss v. Gray, 22 Ohio St. 159, it was held, that the deacons of an unincorporated religious society could not, though ex officio agents for the business affairs of the society, be held personally liable for a contract made by other independent agents of the society. Consult Tobev V Clafiin, 3 Sumner, 379. 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. {11) " 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 agent, 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- bihty." (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 either 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, (s) This exception is merely an application of the rule [ci) (m) Bright V. Hutton, 3 H. L. C. 341. (2) Story, Agency, s. 261. 'See Chajiter V. (z) Conf. Rule 17, Exception I. The remarks there made apply, mutatis mutandis, to actions against an agent. {a) Rule 48. Appleton v. Binks, 5 East, 14S ; Berkeley v. Hardy, 5 B. & C. 355 ; White v. Cuyler, 6 T. R. 176 ; Wilks v. Back, 2 East, 142. Leake, Con- tracts, 290. * And a trustee of a voluntary association, in wliose name bibles are taken for convenience, will not be liable personally for acts done within the scope of his authority as such trustee Stevenson v. Mathers, 67 1)1. 123. 270 PARTIES TO 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. — Where 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, {]}) ' 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 banker, drew the following bill, ' Pay to the order of A. ^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, (<:) and he alone, though the plaintiff, the payee, 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 {6) Leadbitter v. Farrow, 5 M. & S. 345. (c) Sowerby v. Butcher, 2 C. & M. 368 ;'4 Tyr. 320. (d) Byles on Bills, 8th ecL, 33. ' A note which mentions no principal, but is merely signed A. B., " agent," will bind A. B. alone, ev-en where similarly signed notes had been assumed by A. B.'s employers. See Williams v. Robbins, 16 Gray, 77; Dubois v. Canal Co., 4 Wend. 285; Woodbury V. Blair, 18 Iowa, 572 ; Bickford v. Bank, 42 111. 238 ; Rand v. Hale, 3 W. Va. 495; and consult Moss V. Livingston, 4 Comst. 208; Hovey v. McGraith, 2 Conn. 680; Rossiter v. Rossiter, 8 Wend. 494; Emmerson v. Providence, &c., Co., 12 Mass. 237; Bradlee v. Mfg Co., 16 Pick. 347; Long v. Coburn, 11 Mass. 97 ; Ballou v. Talbot, 16 Id. 461; Roberts v. Bulton, 14 Vt. 195; Campbell v. Baker, 2 Watts, 83; Hovey v. Magill, 2 Conn. 680 ; but see De Witt v. Walton, 5 Selden, 571; Rice v. Grove, 22 Pick. 158- PRINCIPAL AND AGENT. 271 is admissible to charge unnamed principals, . . . but is inadmissible for the purpose of discharging 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." {/) Exception 3. — Where credit is given exclusively 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. {Ji) But the question to whom was credit given is in all cases one of intention, to be answered {e) Byles on Bills, Sth ed., 34, 35. See Pentz v. Su^nton, 10 Wend. 271; Leadbitter v. Farrow, 5 M. & S. 345 ; Bult v. Morrell, 12 Ad. & E. 745 ; 10 I . J. 52, Q. B. Compare Lindus v. Bradwell, 5 C. B. 5S3 ; 17 L.'J- 121, C. P. (/) Addison v. Gandasequi, 2 Smith, L. C, 6th ed., 313. \g) Thomson v. Davenport, Ibid., 337, per LiTTLEDAi.E, J. [h) Mahoney v. Kekule, 23 L. J. 54, C. P. ; 14 C. B. 390. 272 PARTIES TO ACTIONS. either from the contract or, where that is doubtful, from the facts, (z) ' [254] Exception 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 in 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- it) Thomson v. Davenport, 2 Smith, L. C, 6th ed., 327. {k) Meriel v. Wymandsold, liardres, R. 205. (/) Anon., 12 Mod. R. 559. See Lambert v. Knott, 6 Dowl. & Ryl. 127. Cullen V. Duke of Queensbury, i Bro. Ch. R. loi ; S. C, i Bro. Pari. Cases, by Tomlins, 396 ; Lancaster v. Fricker, i Bing. R. 201. See Hoskyns v. Slayton, Cas. Temp. Hard. 376. ' Where the agent induces the credit to be given to himself without expressly disclosing his agency, he becomes liable to those acting upon such credit. Evans v. Dunbar, 117 Mass. 546; Hovey V. ^Nlagill, 2 Conn. 680; Reed v. Latham, 40 Id. 452 ; Hall v. Bradbury, Id. t^i ; Pentz v. Stanton, 10 Wend. 271 ; Spencer v. Field, Id. 87; Newhall v. Dunlap, 2 Shepl. 180; Goodwin v. Bowden, 54 Me. 424; Bell v. Mason, jo Vt. 509; Savage v. Rix, 9 N. H. 263; Despatch Line v. Bellamy, 12 Id. 229; Campbell v. Baker, 2 Watts, 83 ; Har- per v. Hampton, i Harr. & J. 622 ; Vork Co. Bk. v. Stein, 24 Md. 447; Deming v. Bullitt, i Black. 241; Rosenthal v. Myers, 25 La. Ann. 463; Haverhill Ins. Co. v. Newhall, x Allen, 130; Gay v. Bates, 99 Mass. 263; Wilder v. Cowles, 100 Id. 487; Simonds v. Heard, 23 Pick. 120; Ballou v. Tal- bot, 16 Mass. 461 ; Taber v. Cannon, 8 Mete. 460; Fnllam v. Brookfield, 9 Allen, i; Cent. Bridge v. Butler, 2 Gray, 130; M'Clellan v. Parker, 27 Mo. 162 ; McCurdy v. Rogers, 21 Wis. 197 ; Saveland v. Green, ^d Id. 612. PRINCIPAL AND AGENT. 273 nary society was conducted by a committee, it was held, that they were personally responsible to a baker who supplied the establishment with bread at their request ; (;;/) for it might be fairly presumed that he looked to the committee for payment, and not to the subscribers at large." («) 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, io) Exception 5. — Where the contract is made by the agent himself, i. 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. R. 705. See Doubleday v. Muskett, 7 Bing. R. no. («) Story, Agency, s. 285. (') See Heald v. Kenwonhy, 10 Exch. 745, judgment of POLLOCK, C. B. (,z) See ante. (fl) Thomson v. Davenport, 2 Smith, L. C. 6th ed., 347, notes. (b) Ibid., 335, judgment of Bayley, J. 28o PARTIES TO ACTIONS. lets the day of payment go by, he 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 action 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 defendant, 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 will 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. 112, judgment of Ei.lenborough, C. J. (d) Heald v. Kenworthy, 10 Exch. 745, 746, judgment of I'arke, B. (hip, 2nd ed., 694 ; Bullen, Pleadings, 3rd ed., 505 506, n. (a). See as to set-off in bankruptcy, ante. (g) See I Lindley, Tartnersliip, 2nd ed., 166 ; 2 Ibid., 1219, 1258, 1259. (h) See post. PARTNERS AND COMPANIES. 293 company, and can, therefore, supposing the company to be registered and then wound up, be enforced at law just as if the company had never been registered or ordered to be wound up. {i) Companies evipozvcred to sue, &c. — 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 public 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, {ni) X., Y., and Z. are partners ; Z. dies ; an action on any contract made by the firm, /. 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 public officer, {n) ' (/) I Lindley, PartnersTiip, 2nd ed., 1259 ; Lanyon v. Smith, 3 B. & S. 938 , 32 L. J. 212, Q. B. {k) Davidson V. Cooper, 11 M. & W. 778. (/) Steward v. Dunn, 11 M. & W. 63 ; Wood v. Marston. 7 D. P, C. 865; I Lindley, Partnership, 2nd ed., 501, 503. (///) Compare Rule 24. (w) See Rule 52. ' See ante. 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 coq:>oration or incorporated body must be sued in its coqDorate 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 wliich 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 ai"e, 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. (6) The liahiliiy, for example, of a shareholder in a company, under 7 Will. rV. & I Vict. c. 73, or in a company empowered by statute to sue, &c., depends upon the terais of the charter, letters patent or statute, under which the ])artic- alar company is constituted. The liability of members, again, of companies within the Companies' Clauses Consolidation Act (8 & g 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- nal pn>pt'rty ; whilst partners in companies within the Companies Act. 1S62, incur a limited or an unlimited liability, according to the terms on which the company is registered. See I Lindley, Partnership, 2nd ed., 388, 3S9. ^ Powhatan Steamboat Co. v. Potomac Steamboat Co., 2i^i Md. 238. ' Provident, &c., Institution v. Jackson, &c., Runk, 52 Mo. INCORPORA TED BODIES. 295 In one cose a member of a corporate bod}^ 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 ssverally liable for the payment of 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. 577 ; Comanchee Mining Co. v. Rumley, i Mon. T., 201 ; State, &c., Association v. Kellogg, 52 Mo. 583; Booth v. Campbell, 37 Id. 522; Lowery v. Inman, 46 N. Y. 119; Norris v. Wren- schall, 34 Mo, 492; Mills v. Stewart, 62 Barb. 444; Union, &c., Association v. Neill, 31 Iowa, 95 ; Wehrem v. Reakert, i Cine, (Ohio) 121 ; Norris v. Johnson, 34 Mo. 485 ; Conckling V. Furman, 48 N, Y. 527 ; Bartlett v. Drew, 4 Lans. 444; 60 Barb. 648; and see Basshor v. Forbes, 36 Mo. 154. ' But this is regulated in the United States by the statutes of the different states. Trading corporations are permitted to do many things by way of simple contracts without the com- mon seal of the corporation, which municipal corporations are 296 PARTIES TO ACTIONS. Exception x.— Where a corporation contracts concerning matters necessarily incidental to the purposes or business of the corporation, [d) Exception 2.— Where the contract relates to matters of trivial importance, or of constant recurrence. (hip, 2nd ed., 1255. ' See ante. INFANTS. 30 » CHAPTER XV. INFANTS. Rui.E 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-delivery 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, {d) 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 Avas in form an action ex contractu, yet in {a) I. e., a peison under twenty-one years of age. An infant has the same fight lo bring an action as any other person. An infant can sue on a contract [e. ^., a promise of marriage) by which he 'u not bound, and on which, therefore, he can not be sued (Bac. Ah., Infancy, I. J. ; Davis v. Mornington, 2 Sid. log ; Holt V. Ward, 2 Str. Q37 ; Warwick v. Bruce, 2 M. & S. 205). (i)) See anttf, and Chapter XXIX. (c) In detinue, for instance. Mills v. Graham, I N. R. 140 (f/) I Esp. 172. 302 PARTIES TO ACTIONS. this case it was in substance an action ex delicto ; that H 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." {h) 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 they 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 Schvyn, N. P., 13th ed., I5g. (/) Chit.. Contract-, 7th ed., 143; Leake, Contracts 226. (g) Alton V. Midland Rail. Co., 19 C. B., N. S., 241, per WiLi.ES, J. {k) Coke, Litt., 172 a. ; Bac. Abr., Infancy. I. i ; Ryder v. Wombwell, L. R. 4, Ex. 3S, judgment of Ex. Ch. INFANTS. 303 speak of this matter, that an infant may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries ; and likewise for his good teaching and instruction, whereby he may profit himself after- wards." (?) 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. (J) What are " necessaries f — The word necessaries, as applied to an infant, extends be3^ond 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 may 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, {vi) regimentals for the member of a volunteer corps, («) horses for a person in a good [286J position in life, io) have been held necessaries. So, necessaries for an infant's wife have been held necessaries for an infant, (/) and an infant widow has been considered {i) Bac. Abr., Infancy, I. i. (/) Burghart v. Hall, 4 M. & W. 727. {k) Peters v. Fleming, 6 M. & W. 46, judgment of Parke, B. (/) See Ryder v. Wombwell, L. R. 3, Ex. 90, judgment of Bramwell, B. (in) Hands v. Slaney, 8 T. R. 578. («) Coates V. Wilson, 5 Esp. 152. ip) Hart V. Prater, i Jur. 623. (/) Turner v. Trisby, i 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 infanc)', 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, if) 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, {ji) and cigars, {x) pres- ents for friends, [y) subscriptions to benevolent objects, {s) 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. ' iq) Chappie v. Cooper, 13 M. & W. 252 ; 13 L. J. 286, Ex. (t) Bacon, Law Maxims, S6 ; Chappie v. Cooper, 13 M. & W. 259, 260, judgmt^nt 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. {u) Brooker v. Scott, ri M. & W. 67. (x) Bryant v. Richardson, cited in Ryder v. Wombwell, L. R. 3, Ex. 93. (y) Ibid., 90. (z) 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. (c) Truman v. Hurst, i T. R. 40. {(i) Oliver v. Woodroffe, 4 M. & W. 650; but conf. Co.. Litt., 172 a ; Baylis V, Dinely, 3 M, & S. 477, 482 ; Marlow v. Pitfield, i P. Wm. 558 ' See next following note. 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 further 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. (/) Burghart v. Hall, 4 M. & W. 727, {g) Biayshaw v. Eaton, 5 B. N. C. 231. {h) Bainbridge V. Pickering, 2 W. Bl. 1325. («■) Leake, Contracts, 233 ; Chitty, Contracts, 7th ed., 136, 137, 140. See Ryder v. Wombwell, L. R. 3, Ex. 97, judgment of Bp..amwell, B. {k) Ibid., L. R. 3, Ex. 90 ; 37 L. J, 48, Ex. (/) Ryder v. Wombwell, L. R. 4 Ex. 42. 20 3o6 PARTIES TO ACTIONS. " It becomes, therefore," the court say, " unnecessary to decide whether the evidence tendered was properly rejected or not.. That is a question of some nicety, and the authorities are by no means uniform. In Bainbridge V. Pickering {in) 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.) actea 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." {p) Second Question. — 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 given 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 which 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 utihty sometimes may be so. As examples of mere luxuries have been cited, ear-rings {m) I Wm. Bl. 1325. («) 7 Scott, 183. \d) 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. Cli.). 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 (/. 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. (/) 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 was 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 ma}'^ 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, judgment of Bramwell, B. (^) See, in support of this view, Ryder v. Wombwell, L. R. 4, Ex. 38-40 udgment of Exchequer Chamber. 3o8 PARTIES TO ACTIONS. recover if they are satisfied that the cigars were, under the whole circumstances of the case, necessaries for X. ' ' See as to necessaries. Breed v. Judd, i Gray, 457 ; Scho- fieia V. White, 29 Vt. 330; Barber v. Vincent, i Freeman, 531 , Rainwater v. Durham, 2 Nott. & McCord, 524. Schooling and instruction have been field to be necessaries ; Tupper v. Cald- well, 12 Mete. 562; Rainsford v. Fenwick, Carter, 216; but not a regular college education ; Middlebury College v. Chandler, 16 Vt. 683 ; generally, Squier v. Hydleff, 9 Mich. 274; Mountain v. Fisher, 22 Wis. 93; Beeler v. Young, i Bibb. 519; Abell \. Warren, 4 Vt. 149; Phelps v. Worcester, II N. H. 51 ; Grace v. Hale. 2 Humph. 27 ; Mason v. Wright, 13 Mete. 306 ; Stanton v. Wilson, 3 Day, 37 ; Bent v. Manning, 10 Vt. 225 ; Rundel v. Keeler, 7 Watts, 239; Phelps v. Wor- cester, 1 1 N. H. 51. The subject of ratification by an infant, and of transac- tions by them, will be found to be regulated by the statutes of the different states. Thus in Alabama the contracts of an infant are made voidable only. Shropshire v. Barns, 46 Ala. J 08. In Iowa a minor is precluded from disaffirming a con- tract where " the other party had good reason to believe the minor capable of contracting." Beiler v. Marchant, 30 Iowa, 350. The provision of the Kentucky Revised Statutes, ch. 22, § I, that " no action shall be brought to charge any person upon a promise to pay a debt contracted during infancy," does not apply to an action for necessaries furnished the in- fant. Bonney v. Reardin, 6 Bush. (Ky.) 34. To constitute a binding ratification of an infant's contract, such ratification must be made with the deliberate purpose of assuming a liabil- ity from which the person knows himself to be discharged by law. Petty v. Roberts, 7 Bush. (Ky.) 410; and see, generally, Minock v. Shortridge, 21 Mich. 304; Holt v. Baldwin, 46 Mo. 265 ; Johnston v. Furnier, 69 Pa. St. 449; Grant v. Beard, 50 N. H. 129. As to the disaffirmance of contracts by infants, there is much difference in the rulings of the different states. See, generally, Heath v. West, 6 Foster,' 193 ; Car v. Clough, Id. 280; Roberts v. Wiggin, i N. H. 75 ; Jackson v. Carpenter, 11 Johns. 539; Jackson v. Burchin, 14 Id. 124; Willis v. Twom- bly, 13 Mass. 204 ; Knox v. Flack, 10 Harris, 337 ; Badger v. Phinney, 15 Mass. 359; Plubbard v. Cummings, i Greenl. 13 ; Roof V. Statford, 7 Cow. 183; Wheatley v. Mescal, 5 Ind. 142; Baldwin v. Van Deusen. 37 N. Y. 487 ; Crymer v. Day, i Bailey, 320 ; Jones v. Todd, 2 J. J. Marsh. 361. But, in cases INFANTS. 30C- Exception 2. — Contracts in respect of permanent property occupied or possessed by an infant. There seems to be authority for asserting, {u) 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. of an executed contract, the rule is settled that, if it were ben- eficial to the infant, and entered into bona fide, the infant can not rescind unless he can place the opposite party in statu quo. Middleton v. Hoge, 5 Bush. (Ky.) 478; Bryant v. Pottin- ger, 6 Id.' 473 ; Kerr v. Bell, 42 Mo. 120; Welch v. Welch, 103 Mass. 562; Breed v. Judd, i Gray, 457 ; Heath v. Stevens, 48 N. H. 251; Locke v. Smith, 41 Id. 346; but see Bartlett v. Cowles, 15 Gray, 445; Chandler v. Simmons, 97 Mass. 508 ; Gibson v. Loper, 6 Gray, 272; Price v. Furman, 27 Vt. 268; Bartlett v. Drake, 100 Mass. 176; Briggs v. McCabe, 27 Ind. 357; Miles V. Lingerman, 24 Id. 385. " The true rule," says Story (Contracts, § 107), "seems to be that when articles are furnished to the infant which do not come within the definition of necessaries, and which are consumed or parted with, or when money is lent which is expended by the infant, that the other party has no remedy to recover an equivalent for the goods or the money, if the specific considerations given by him. have been parted with, or be incapable of return. But wherever the specific consideration, whatever it be, exists and remains in the hands of the infant at the time of his disaffirm- ance of the contract, and is capable of return, the infant is bound to give it up, and he is treated as the trustee of the other party if the contract be made originally in good faith." And so one who has paid off a mortgage on the land of infants can not maintain an action against them for the money, although the mortgage was paid off at the request of their guardian. Bick- nell V. Bicknell, 11 1 Mass. 265. The question as to what are necessaries for an infant is one of fact for the jury. Davis v. Caldwell, Month. L. R. (N. S.) 165. 3IO PARTIES TO ACTIONS. was admitted to a copyhold estate, and retained possession of it after coming of age, he was held liable for the fines 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 Avas 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." ix) So, " in- [291] fants having become shareholders in railway com- panies, have been held liable to pay calls made whilst they were infants, (j) 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 at- 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, {z) 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 7iot liable. — A father is, as such, under no legal liability to pay for necessaries supplied to his child. {v) 2 Bulst. 69. (x) Evelyn v. Chichester, 3 Burr. 1719, judgment of Yates, J. {}•) Cork and Bandnn Rail. Co. v. Cazenove, 10 Q. B. 935 ; Leeds and Thirsk Rail Co. v. Kearnley, 4 Exch. 26 ; 18 L. J. 330, Ex. (2) 21 Hen. VI., 31 B. (a; North- Western Rail. Co. v. McMichael, 5 Exch. 123, 124, per CURIAM. INFANTS. 311 •* [n 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." (/;) 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 [z. 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) r.^., 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 the infant himself might be sued, or contracts which are not void, but only voidable at the election of the infant on coming of age.' (/;) Mortimore v. Wright, 6 M. & W. 486, judgment of Abinger, C. B. (c) Leake, Contracts, 27, 28 ; Mortimore v. Wright, 6 M. lSj; W. 482. Com- pare Bazeley v. Forder, L. R. 3, Q. B. 559 ; 37 L. J. 237, Q. B. {d) Keane v. Boycott, 2 H. Bl. 511. {e) 8 East, 330. (/) Baylis v. Dineley, 3 M. & S. 477. ' See last note. 312 PARTIES TO 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. (^) ' Exception 2. — Contracts ratified in writing after full age. An adult may be sued on a contract made during in- fancy ie. g., for the purchase of goods not necessaries), if, after he comes of age, he confirms it by a new [293] promise or ratification, {h) and this promise will be binding without any fresh consideration for it. (?) " The principle on which the law allows a party who has attained his age of twenty-one years, 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." {J) 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. {h) Provided the contract be not originally absolutely void (liaylis v. Diiie- ley, 3 M. & S. 477), in which case it is, strictly speaking, nut a contract. (/) As to consideration, see ante. (J) 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. (t) Harris v. Vv'all, i Exch. 122, 130, per Curiam ; Rowe v. Hopwood, i- R. 4, Q. B. I. ' See last note. 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. {in) The confirmation or ratification of a contract made during infancy must in all cases be before action brought, {n) ' 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 ot 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, () Baylis v. Dineley, 3 M. & S. 477, 481 ; 2 Steph. Com., 6th ed., 329. {q) Goode v. Harrison, 5 B. & Aid. 147. (r) Lindley, Partnership, 2nd ed., 86-88. (j) Ibid. See last note. 314 PARTIES TO ACTIONS. which he originally became a shareholder, (/) and there- fore is liable for calls made as well before as after he came of age. {u) 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 acti< m 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. ( j) But if Y. alone be sued, and he plead X.'s non-joinder in abatement, the plaintiff may meet the plea by replying X.'s infancy. {£) (i) Ibid. (w) London and North-Westein Rail. Co. v. McMichael, 5 Excli. 114; 20 L. J. 97, Ex. ; Cork and Bandon Rail. Co. v. Cazeuove, 10 Q. B. 935 ; Dublin and Wicklow Rail. Co. v. Black, 22 L. J. 94, Ex. ; 8 Exch. 181. (Ex. Ch.) and contrast Nevvry and Inniskilling Rail. Co. v. Combe, 3 Exch. 565 ; 18 L J. 325. Ex. (x) Boyle v. Webster, 21 L. J. 202, Q. B. ; 17 Q. B. 950. (y) Burgess v. Merrill, 4 Taunt. 468 ; Chit., Contracts, 7th ed., 143. (2) 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. ((5) 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) I Exception 4. — Where the husband is an alien enemy. A wife can not, as before pointed out, {e) 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, ig) (a) See Rule 29 for explanation. (b) See Rule 29, Exception I. {c) See Rule 29, Exception 2. (d) Ibid., Exception 3. (e) See ante. (/) I Selwyn, N. P., 13th ed., 240 ; Walford v. Duchesse de Pienne, 2 Esp. 534 ; Fiancks v. Duchesse de Pienne, 2 Esp. N. P. C. 587. (g) But see Kay v. Duchesse de Pienne, 3 Camp. 123, where Lord Ellen- BOROUGH confines the doctrine to the case where the husband has never been 3i6^ PARTIES TO ACTIONS. SUBORDINATE RULE. A wife can not be sued by her husband, {h) Rule 67. — A husband and wife must be tq) Lush, Practice, 3rd ed., 102. (g) 2 Roper, Husband and Wife, 2nd ed., 105. 3i8 PARTIES TO ACTIONS. The effect of death as regards actions on contracts on which the wife is charged as executrix, &c., 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, (r) 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 wife 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 wife 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 Avife to pledge his credit, which must be proved by the plaintiff, {it) [300] A utJiority of wife to bind husband. — The authority of a wife to pledge her husband's credit depends (with one exception) on the principles which govern the relation of principal an-d agent, ix) 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 ; but 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, 6th ed., 396 • France v. White, i M. & G. 731. {t) Except, of course, in the cases enumerated as exceptions to Rule 65 : France v. White, i M. & G. 731. {u) 'Bullen, Pleadings, 3rd ed., 172 ; Manby v. Scott, 2 Smith, L. C, 6th ed., 396, and following. {x) Chapter XIL HUSBAND AND WIFE. 319 settled is, in all cases, whether the wife has the husband's authority to make the conti-act on which the action is brought. If she has express authority, or if her husband has ratified {y) a 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 impUed to make the contract; ... if there be ex- press authority, there 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 Hving 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." {b) 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) {y) Montague v. Benedict, 3 B. & C. 631; 2 Smith, L. C, 6th ed., 429; Seaton v. Benedict, 5 Bing. 28 ; 2 Smith, L. C, 6th ed., 13 ; Waithman v. Wakefield, i Camp. 120 ; Leake, Contracts, 246, 247. (z) See Tolly v. Rees, 33 L. J. 179, C. P., judgment of E RLE, C. J. {a) Manby v. Scott, 2 Smith, L. C 6th cd., 441 ; Montague v. Benedif, Ibid., 429 ; Jolly v. Rees, 33 L. J. 177, C. P. ; 15 C. B,, N. S., 62S ; F.tiie - ington V. Parrot, i Salk. iiS ; 2 Smith, L. C, 6th ed., 4|i , Watson v. Threlkeld, 2 Esp. 637. {b) Jolly V. Rees, 33 L. J. 179, C. P., judgment of Erle, C. J. {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] ter)'. [k) A tradesman, or other person, who trusts a wife living apart from her husband, can not treat the husband as liable to pav 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), {d) Jolly V. Ress, 33 L. J. 177, C. P.; 15 C. B., N. S., 62S. Compare Ryan v. Nolan, Iri:,h 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 a7ite. {g) Ozard v. Darnford, i Selwyn, N. P., 13th ed., 229. {h) Mizen v. Pick, 3 M. & W. 4S1 ; Biffin v. Bignell, 31 L. J.. 189, Ex., 7 H. & N. 877. (i) Bullen, Pleadings, 3d ed., 172, 173. (/•) 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. B., 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. (;/) Where it became necessary for a wife to exhibit articles of the peace against her husband, it was hwld that he was liable for the costs of an attorney employed by her on that occasion, {p) 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 ; (/) 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. 1S9, C. V. ; 7 H. & N. 877. (w) Compare the meaning of tlie word " necessaries" when used with re- gard to the contracts of an infiint, and especially the question whether things can be necessary for an infant with which he is already supplied, ante. Ryder V. Wombwell, L. R. 4, Exch. 32 (Ex. Ch.) ; Jolly v. Rees, 33 L. J, 180, C. P., judgment of Bylks, J. («) Hunt V. De Biaquiere, 5 Bing. 550. {0) Shepherd v. Mackoul, 3 Camp. 326. ( /> ; Turner v. Rookes, 10 A. & E. 47. {(]') Brown v. Ackroyd, 5 E. & B. 819 ; 25 L. J. 193, Q. B. See Grindell V. Godmond, 5 A. & E. 755. {r) Leake, Contracts, 246. (.f) WiUon V. Ford, L. R. 3, Exch. 63. (/) Ibid. 21 322 PARTIES TO ACTIONS. a distress, {u) 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 justified 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.' {u) Bazeley v. Forder, L. R 3, Q. B. 559; 37 L. J. 237, Q. B. ' The law as to necessaries for a wife is one that must vary with the circumstances of each case. So a husband has been held liable for the fees of attorneys employed by her to defend her against a prosecution instituted by her husband to compel her to find sureties to keep the peace. Warner v. Heiden, 28 Wis. 517 ; but see Ray v. Raden, 50 N. H. 82 ; Wren v. Hurl- burt, 15 Vt. 607; Shelton V. Pendleton, 18 Conn. 417; Coffin v. Dunham, 8 Cush. 404. But a pew in a church has been held not a necessary for a wife so that a husband would be liable for the rent thereof. St. John's Parish v. Bronson, 40 Conn. 75. And see, generally, Johnston v. Allen, 39 How. Pr. 506; Bonney v. Reardin, 6 Bush. 34; McCreedy's Case, i Tuck. 374; Mulvey v. State, 43 Ala. 316; Knowles v. Hull, 99 Mass. 562; Day v. Wamsley, 33 Ind. 145; Anderson v. Smith, 2,-^ Md. 465 ; Woolford v. Burns, 43 Vt. 330; Stevens v. Story, Id. 327; Hultz v. Gibbs, 66 Pa. St. 360; Walker v. Simpson, 7 Watts & S. d>2)'i Franklin v. Foster, 20 Mich. 75 ; Furlong v. Hysom, 35 Me. 2,2)2i ', Fames v. Sweetzer, loi Mass. 78; Wood v. O'Kelley, 8 Cush. 406. A son-in-law is liable to his father-in-law for necessaries fur- nished the former's wife, though there was no implied promise to pay for them. Biddle v. Frazier, 3 Houst. 258. A step- father, however, is not under any legal obligation to support the children of his wife by a former marriage. Altridge v. Billings, 57 111. 489. A husband is liable for necessary medi- cal advice and attendance to the wife, unless the credit was given directly to the wife. Carter v. Howard, 39 Vt. 106. But HUSBAND AND WIFE, 323 Effect of death.— On the death of a husband, his execu- tors become liable oh the contracts of his wife made dur- ing coverture, on which he himself was liable; thus, generally speaking, the executors of a husband arc ii^.ble 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, ix) 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 wdiich he had incurred before the divorce on contracts made by his wife during coverture.' (jf) Smout V. Ilbery, lo M. & W. I ; 12 L. J. 357, Ex. (;■) Blades v. Free, 9 B. & C. 167 ; 2 Williams, Executors, 6th ed., 1633 Compare 2 Smith, L. C, 6lh ed., 456. dreams and revelations, or visions of a person in a mesmeric sleep, are not necessaries. Id. See Sutler v. Martin, 50 Ga. 242. ' The statutes of the different states have regulated the bringing of suits by husband and wife in this country, as in- stanced by the following decisions : I. Where husband may SUE ALONE. — The common-law doctrine that the husbpnd can sue for and recover in his own name the acquisitions of the wife, is substantially recognized by the laws of Georgia; and where a wife purchased cotton with the husband's funds, but added greatly to its value bv her skill and man;igement, the husband can maintain an action in the United States court of 324 PARTIES TO ACTIONS. Rule 69. — The following are the results of enors in joinder of parties in actions against husloand or wife : — claims in his own name for the proceeds, under the aban- doned or captured property act of 1863. Reilly v. United States, 7 Ct. of CI. 504. Where a husband presented his wife with certain articles of wearing apparel, jewelry, &c., prior to the Illint)is statute of 1862, Avhich makes such iier sole prop- erty — held, that such articles were her paraphernalia, and that a husband could sue alone for an injury to them. McCormick V. Pennsylvfinia, &c., R. R. Co., 49 N. Y. 303. A husband may maintain an action as holder upon a bill of exchange payable to his wife's order and indorsed by her and others, the last in- dorsement in this case being in blank. Ahrens v. State Bank, 3 D C. 401. II. Where wife may sue alonk. — Under the laws of Georgia, where a wife by consent of her husband makes a contract for her own labor, she herself to receive the com- pensation. Merewether v. Smith, 44 Ga. 541. And see to the same effect, in New Hamushire ; Cooper v. Alger, 51 N. H. 172; unaffected bv the fact that the avails of her labor were in the form of a note to her. The New York statute of 1862, ch. 172, does not affect the right of the husband to the earnings of the wife unless she is engaged in some trade or business on her own separate account; and in such a case the husband is the proper plaintiff for an injury to the wife. Filer v. i^cw York, &c., R. R. Co., 49 N. Y. 42. In Illinois, where a wife, during the period when she was living apart from her husband, with- out fault on her part, received injuries by reason of the neg- lect of a city to keep a street-crossing in repair, and she, sub- sequently to obtaining a divorce from her husband by reason of his abandonment of her, in the meantime supported liersclf by her own industry, held — that she might maintain the action in her own name; Peru v. French, 55 111. 317; or where she has been ousted wrongfully from the homestead left in lier possession by the husband wlio has abandoned her; Mix V. King, Id. 434 : or, under the Iowa statutes, for a libel ; Pancoasl v. Burnell, 32 Iowa, 394; or, under the New York statutes, for conversion of, or injury to, her wearing apparel and personal ornaments; Rawsc^n v. Pennsylvania R. R. Co., 48 N. Y. 2T2. And a wife in New York may sue her husband for partition; Moore v. Moore, 47 N. Y. 467 ; or her hus- Dand's firm, including himself, for services rendered the firm ; HUSBAND AND WIFE. 323 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 ou^rht to be sued alone, the error is fatal unless amended. \. If a husband is sued alone, &e. — If a husband i= sued alone where his wife ought to be joined, r. ^., 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, eSic. ; 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) Garrani v. Giubilei, ii C. C, N. S, 6i6 ; 31 L. J- 13^. C. P.. esp. jiid^- ment of Williams, J., 31 L. J. 133, C. P. ; 13 C. P.., N. S., S32 ; 31 L. J. 270 C. P. (Ex. Ch.). Adams v. Curtis, 4 Lans. 164; and also in Tennessee, where they were married a/ler the services were rendered; Bennett V. Winfield, 4 Heisk. 440. A married woman dcjmiciled ic another state than that wliere the suit is brouglit, is gcn'eraed by the laws of the state of her domicil. and may bring an action in her own name if permitted to do so by its statutes. Stoneman v. Erie Ry. Co., 52 X. V. 429. III. Where ruth may SUE. — A married woman, a tenant for years, mav, in Oliio, jointly with her husband, sue a lessor for specific performanc e or compel a conveyance; Bain v. Bickett, i Cine. 16 r ; and a husband in that state, after his wife's death, may join with her heirs in a petition in error to reverse a judgment rendered against himself and wife; Hammond v. Hammond, 21 Ohio St. 620. ' In Texas both tlie husband and wife must sue for recovery of communitv property. Murphy v. Cofley, 33 Tex. 508. See a valuable note as to the wife's separate property rights, in note I to p. 261, vol. I, of Morgan's Addismi on Contracts Page v. DeLeuw, 58 111. 85; Cooper v. Alger, 51 X. H. 172 j?6 PARTIES TO ACTIONS. 2. If azvifc is sued alom,&c. — If a wife is sued alone, e. g., on contracts made 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 realit)' liable. She, therefore, can not treat the error as afford- hig an answer to the action, but she may insist upon her husband being joined as defendant. In other words, she mav plead her coverture in abatement. She can take no other advantage of the error. (/;) ' 3. If a husband is sued jointly, cVr.— If a husband and wife are sued jointly where the husband ought to be sued alone, the error is fatal, unless amended, (f) 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. {cT) U>) Bullen. Pleadings, 3rd ed., 171 ; Lovel v. Walker, 9 M. & W. 299 ; Miluer V. Millies, 3 T. R. 627, 631. {/■) See Chapter XXXIV. {/i) If a wife be sued alone in cases where she ought not to be joined, she is, in effect, sued on a contract on whkh she is not liable. An action, therefore, a<4airLst her can not succeed. If, however, the defense is tliat she is not liuble, Because at the time of making the contract she was a manieil woman, lier co%'erture must be specially pleaded. Bullen, Pleadings, 3ril cd., 598 ; 7 R. G. rf. T. 53. ' When tlie husband acts as the wife's agent she nnist be iued alone; Ingram v. Nedd, 44 Vt. 462; in Kansas, where she has executed a note in payment of her luisbanci's debt ; Dcering v Boyle, 8 Kan. 525 ; or in Missouri, where she possesses a separate estate ; Lackland v, Mittalberger, 50 Mo. 182; and see Kcnnard v. Lax, 3 Oreg. 263. Both as to wliere husband and wife may be joined, see Smolridge v. Lovell, 35 Tex. 58; Davidson v. McCandlisli, 69 Pa. St. 169; Kowing v. Manly, 49 N. Y. 172; Lennox v. Eldridge, 65 Barb. 510; Briggs V. Davis, 108 Mass. 322 ; Bacon v. Beavan, 44 Miss. 293; Carleton v. Haywood, 49 N. H. 314. BANKRUPT AND TRUSTER, 327 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 {b) free the bankrupt from liability on his contracts. {,c) The following contracts with the bankrupt are put an end to altogether as far as he is concerned, b}'- and from the date of the order of adjudication. 1st. Covenants or other contracts having relation to oner- ous property, zvhich the trustee may either adopt or dis- claim. — Whether 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 awa}^ from the [307] {d) Bankruptcy Act, 1S69, ss. 23, 33, 31, and 49. Debts or liabilities con- tracted after the date of the order of adjudication are not proveable under the bankruptcy, or barred by the order of discharge. Bankruptcy Act, 1869, ss. 31.49- (l>) Spencer v. Demett, L. R. i, Ex. 123 ; Hartley v. Greenwood, 5 B. & 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. {c) 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, 1869, ss. 13, 4. * Thornburg v. Madren, 33 Iowa, 380 ; Apperson v. Stew- art, 27 Ark. 619; Dusenbury v. Hoyt, 14 Abb. Pr., N. S., 132. 328 PARTIES TO ACTIONS. 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 liable in any way for future breaches of the covenants, {d) 2nd. Indctitnres of apprenticeship.— hxi indenture of apprenticeship is completely discharged, at the will either of the bankrupt or the apprentice, by the order of adjudi- cation, {e) ■ The general principle as to all other liabilities on con- tracts made by the bankrupt before bankruptcy, is that if the claims against him are 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, 1869, s. 23. As regards breaches committed before the adjiicHcation. the bankrupt's lialiility is exactly the same as for the breach of any other contract made by him before bankruptcy. (e) Bankruptcy Act, 1869, s. 33. (/) Ibid., s. 49. (g) This is the result of the following provisions of the Bankruptcy Act, 1869, s. 31 : — "Demands, in the nature of unliquidated damages, arising otherwise than by reason of a contract or promise [/. ) The result of the Act seems to be, that during [310] 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) (/> ) Ilis 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 dose of tlie 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 uniil '.he 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 di\idend of ten shillings in the pound had originally been paid out of his property. "2. At the expiration of a period of tliree years from the close of the bank- ruptcy, if the debtor made bankrupt has not obtained an order of di.->charge, any balance remaining unpaid in respect of any debt jDroved 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 whicli 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 prescribed in tliat be- half" Bankruptcy Act, 1S69, 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 bankruincy. See Chapter XVII. (<7) See, however. Bankruptcy Act, 1S69, s. 12, compared with sect. 54. J^e Atkinson, Id. 424; Re Mallory, i Sawyer, 8S ; ]Main\varing V. Koiins, 35 Tex. 171 ; and as to tlie effect of bankrtiptcy pro- ceedings on pending suits, see Smith v. Soldier's, &c., Co., 35 N. J. L. 60; Stone v. Brookville Bank, 39 Ind. 284; Stuart v. Hines, 33 Iowa, 61 ; Foster v. Wylie, 60 Me. 107 ; Fritsch v. Van Mitendorf, 2 Cin. 261; Cannon v. Wallford, 22 Gratt. 195- 332 PARTIES TO ACTIONS. 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 bv an action on the judgment. Rule yi. — 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 liabilities. In other words, they could not be sued on contracts made by the bank- rupt in the same wa}- 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 assigness, on the other hand, if 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- ing a lease made to the bankrupt, incurred the same liabilities as any other assignees, and could get rid of them in the same wa}' 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. Through, Cowp. 134 ; Broom, Parties, 2nd ed., s. 1S3. (j) Gibson V. Carnuliers. 8 M. & W. 321. (/j Onslow V. Corrie, 2 Madd. 330; Broom, Parties, 2nd ed., s. 230. BANKRUPT AND TRUSTEE. 333 bind succeeding- trustees. This, at least, seems to be the effect of the following enactment: — («) " The trustee of a bankrupt may sue and be sued by the 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 ; (,r) 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."' (11) Bankruptcy Act, 1869, s. 83, cl. 7. (jf) See Bankruptcy Act, 1869, ss. 51-53. ' See as to actions by and against assignees in bankruptcy, Ex parte Rockford, &c., R. R. Co., i Low, 345; F.x parte Dalby, Id. 431; Ex parte Ames, Id. 561 ; Miller v. O'Brien, 9 Blatclif. :'7o; Knowlton v. Moseley, 105 Mass. 136; Rogers v. Stephenson, 16 Minn. 68; Sedgwick v. Casev, 4 Ben. 562; Wright V. Johnson, 8 Blatchf. 150; Reade v. Waterhouse, 12 Abb. Pr., N. S., 255; Bromley v. Smith, 2 Biss. 511 ; Traders' Bank v. Campbell, 14 Wall. 87; Smith v. Mason, Id. 419; Barron v. Newberry,! Biss. 149; Cole v. Duncan, 58 111. 176; Bradshaw v. Cline, 2 Biss. 20; Cragin v. Carmichael, 2 Dill. 519; against an assij^nee, Cragin v. Thompson, 2 Id. 513; Adams v. Meyers, i Sawyer, 306; Hallam v. Maxwell, 2 Cin<- 136 ; HoU V. Deshler, 71 Pa. St. 299. !,3,4 PARTIES TO ACTIONS, CHAPTER XVIII. EXECUTORS, ADMINISTRATORS, AND HEIRS. Rule jT). — The personal representatives (a) of a deceased person (i. 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. (<:) Their liability is the same, whatever the form {d) or the nature of the testator's or uitestate'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.,to give a fortune to his daughter, () Edmondson v. Machell, 7 T. R. 4 ; Savil v. Kirby, 10 Mod. 386; Smith, Master and Servant, 2nd ed., 97, 98. (^) 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, {u) 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, {y) 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, (;-) Fores v. Wilson, Peake, 55. {s) Howard v. Crowther, 8 M. & W. 6or. {i) Edmondson v. Machell, 2 T. R. 4. («) Hooper v. Luffkin, 7 B. & C. 387. {x) Dean v. Peel, 5 East, 46. (y) Manley v. Field, 29 L. J. 79, C. P. ; 7 C. B., N. S., 96. (2) Manley v. Field, 29 L. j. 80, C. P., judgment of ErLE, C. J (a) Bennett -v. Alcott, 2 T. R. i63 ; Carr v. Clarke, 2 Ch. 260. GENERA L 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 familj^, {b) or, in other words, that the mere fact of her living at home is sufficient proof of service, {c) ' {b) Evans v. Walton, I.. 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 Vifilh 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. Norris, 3 Camp. 51S). 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). ' Hays V. Borders, 6 111. 46; McKay v. Bryson, 5 Ired. (N, C.) 216; Stout V. Moody, 63 N. C. 67; but if the action is for seducing and employing, a knowledge that he is the servant of another must be proved; Conant v. Raymond, 2.Aik. (Vt.) 243 ; Stewart v. Simpson, i Wend. (N. Y.) 376 ; but, if igno- rant when he first employed him, if he continues the employ- ment after knowledge, he is liable; Ferguson v. Tucker, 2 H. & G. (Md.) 182. The action for the seduction of a daughter is prima facie predicated upon loss -of service resulting there- from, but really and substantially it is an action to compensate parents for the injury to their feelings, dignity, and honor by the seduction of a daughter. No recovery can be had unless it can be shown that some services have been performed for the parent, but any, even the most trivial, service is sufficient. Badgeley V. Decker, 44 Barb. (N, Y.) 577 ; Ingerson v. Millar, 47 Barb. (N. Y.) 47; Moran v. Daws, 4 Cow. (N. Y.) 412 Mere residence with the parent, and rendering such general services as a daughter generally does, is enough; actual loss of service need not be shown, nor need it be shown that any actual loss pecuniarily has resulted ; Lee v. Hodge, 13 Gratt. (Va.) 723; Hewitt v. Prime, 21 Wend. (N. Y.) 79; Moran v 352 PARTIES TO ACTIONS. Landlord and tenant.— AcWons are often brought 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 Dawes, ante j Knight v. Wilcox, 14 N. Y. 413 ; it has been held enough that the parent was entitled to her services; Mulver- hall V. Milward, 11 N. Y. 343 ; Hartley v. Ritchmeyer, 4 N. Y. 38 ; even though at the time she was in the service of another; Ingerson v. Millar, 47 Barb. (N. Y.) 47 ; or of the defendant; Sttles v. Tilford, 10 Wend. (N. Y.) 338; and even though the parent had given her her time, and she was, at the time of her seduction, working for a third person, and had her own wages, and the expenses of her sickness were paid by her empk)yer; Clark V. Fitch, 2 Wend. (N. Y.) 459; and even though she was in the employ of another, and did not intend to return to her father's house ; Martin v. Payne, 9 Johns. (N. Y.) 987 ; but in all cases he must be entitled to her services, and must not have divested himself of the right to command them, for if he has apprenticed her his right of action is lost ; Clark v. Fitch, ante J Bartley v. Ritchmeyer, 4 N. Y. 38 ; Briggs v. Fvans, 5 Ired. (N. C.) 16 ; Ball v. Bruce, 21 111. 161; and where the action is brought by one Avho s*tands in loco parentis, actual service and the relation of master and servant at the time when the offense was committed must be established ; as where the action was brought by the stepfather; Bartley v. Ritchmeyer, ante J by a brother, Millar v. Thompson, i Wend. (N. Y.) 447 ; and any one, guardian, master, or other person standing in loco parentis at the time of the seduction, if she wps really his servant; Ball v. Bruce, 21 III. 161 ; Ellington v. Ellington, 47 Miss. 329. So, where a daughter is over twenty-one years of age, the relation of master and servant at the time of the seduction must be established, or there can be no recovery. The fact that she was seduced and then returned to her father's house is not enough; she must have been his servant at the time of her seduction ; George v. Van Horn, 9 Barb. (N. Y.) 923; Nicholson v. Stryker, 10 Johns. (N. Y.) 115; Millar v. Thompson, ante ; Vossel v. Cabe, 10 Miss. 634; Doyle v. Jes- sup, 29 111. 460; Ball V. Bruce, 21 Id. 161 ; but if she resides there and performs any service, even though in return for her board, it is enough; Lipe v. Eisenland, 32 N. Y. 229. In order to create a right of action, mere seduction is enough, if followed by loss of service from any cause, even though neither pregnancy nor sexual disease transpired; White v. Nellis, 31 N. Y. 405 ; Abrahams v. Kidney, 104 Mass. 222; and GENERAL RULES. 353 *ijury to the goods of the bailor. But the tenant or bailee rfoes 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 b}^ 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 followinof rule : Rule 79. — The person who sustains an injuiy {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 sevei'al 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 genei'ally be considered most interested in main- (d) I. e., an interference with legal rights existing independently of a con- tract. {e) See aiiie. the action may be maintained even though the seduction was accomplished by force, and against the consent of the daugh- ter; Daman v. Moore, 5 I.ans. (N. Y.) 454. The fact that the girl is in the employ of another does not necessarily prevent the parent from maintaining an action. If he has a right to her services when he sees fit to conunand them a recovery may be had; the real test is, whether he has divested Inin- self of that right; Martin v. Payne, ante ; Mulverhall v. Mil- ward, II N. Y. 343; Stiles V. Tilford, 10 Wend. (N. Y.) 33 ; Wood's Addison on Torls, § 1273. 23 354 PARTIES TO ACTIONS. taining the action. The bearing of the general rule is best shown by considering its application to the three great classes of injuries; viz., injuries to person, injuries to character, injuries to property. (/) Injuries to person. — Every man has a right to recover damages for any injury done to his person, whether caused by 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 the 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, {h) 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 on A. might cause indirectly an injury to B., for which B. might perhaps sue X., the libeler, such cases must 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 person, property, &c. (g) See Rule 78, ante. The reader should liear in mind, throughout the chapters on actions for tort, the distinction between Trespass and Case; the cne being the form of ■ action for direct, the other for indirect or consequential injuiy. See ante. {h) See anil'. ' See Morgan's Law of Literature, vol. L, art. Libel; vol '.i., art. Newspapers. GENERAL RULES. 355 Injuries to property. — These injuries consist in damage either to real property or to personal property. 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 th-e property, and at the same time interferes with the immediate en- [332] joyment of it in its uninjured state. {Ji) 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 right 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 rever- {k) See, on this point, Lush, Practice, 3rd ed., 151 ; Addison, Torts, 3rd ed., 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 (w) gives rise to the two follow- ing subordinate rules : — [333] SUBORDINATE RULE I. The person to sue for any interference with the immediate enjoymetit or possession of land or other real property is the person who has possession of it, and no one can sue merely for such an interference who has not possession. Any one, therefore, who is in possession of land, (;«) 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, {0) 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. (w) Taken in combination with Rule 78. (;/) The expression " land " is used for the sake of brevity ; but it must be borne in mind that "real property" includes many things — e.g., 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 diiect and immediate interference with the posses- sion of land, and is, therefore, llie 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 laud ; but there are cases where the injuiy is indirect, or where, for other reasons, trespass will not lie, still the same general principle applies. The person in possi-ssion must sue for interference with the right to the immediate enjoyment of propeity. GENERAL 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 [334] 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, and 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, {t) 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, th^ii: 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. Burhidge, 13 C. B., N. S., 430; 32 L. J. 8g, C. V. ; Mason v. Keeling, i Ld. Raym. 60S ; Dawtry v. Huggins, Clay ion, 32. {,q) Reynolds v. Clarke, 2 Ld. Rayni. 1399. (?-) Addison, Torts, 3rd ed., 256. {s) Merilon v. Coombes, 9 C. B. 972 ; 19 L. J. 336, C. P. (/) Heyden v. Smith, 13 Coke, 67; White v. Bailey, 10 C. B. 227 ; 30 L. J. 253, C. P. ; Bacon, Abr., Trespass, C. 3. {11) Graham v. Peat, i East, 244 ; Purnell v. Young, 3 M. & W. 288 ; Browne V. Dawson, 12 A. & E. 624. (..f) Bertie v. Beaumont. 16 East, 33 ; Bulleu, Pleadings. 3rd ed., 417. 358 PARTIES TO ACIIONS. by showing that some third person, M., was entitled to possession. ( j) The plaintiff was possessed of glebe [335] land, under a lease void by the statute 13 Eliz. c. 20, and it was held, {z) 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 f)ossession, and possession means exclusive possession, {c) Hence, commissioners of sewers, Avho 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 Kast, 243. (a) Lambert v. Stroother, Willes, 221 ; Asher v. Whitlock, L. R. i, Q. B t, 5, judgment of CoCKBURN, C. J. {b) Bertie v. Beaumont, 16 East, 36, judgment of Grose, J. {c) See Hill v. Tupper, 32 L. J. 217, Ex. ; 2 H. & C. 121 ; and ante. (d ) Newcastle v. Clark, 2 Moore, 265. GENERA L R ULES. 3 59 ro enable them to maintain trespass against a wrong- doer. (/?) " 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 interest 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, {g) 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." {h) "Trespass, again, will not lie for entering into a pew or seat in a church, 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 ; {k) 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 B. & Aid. 600. (/) 2 Moore, 226. (^) 8 East, 394. {h) Dyson v. Collick, 5 B & Aid. 602, 603, per CURIAM. (i) Stocks V. Booth, i T. R. 428. \k) Bertie v. Beaumont, 16 East, 33. Compare Wright v. Stavert, 2 E. & E. 724 • 29 L. J., 161 Q. B. 36o PARTIES TO ACTIONS. school-room, on being dismissed by the trustees, gave up 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 [337] was held that he could not maintain trespass for being so ejected, or, in other words, that his occupa- pation did not amount to prima 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," (/) says 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 possessor}', 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 thev 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 1st [of] July, he could as little have done on the nth; for his tortiousl}- 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." (;«) From the fact that trespass, or any other action for interference with the immediate enjoyment of land, must (/) 2 Ring. N. C. gS. 'm) Browne v. Dawson, 12 A. & E. 628, 629, per Lord Denman, C. J. GENERA L R ULES. 361 be r rur.fjht by a person who is either actually or con- strurtivf ly {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, {?i) 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. (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 schoohnaster, in the case of Browne V. Dawson, could not each at the same time have possession of the room. (p) Compare and contrast with this the rule as to actions of trespass to goods or of trover. See post (/>) Bacon, Abr., Trespass, C. 3. See Barnett v. Earl of Guildford, il Exch. 19 ; 24 L. r. 281, Ex. {(/) Plowd. 142. (r) Wheeler v. Montefiore, 2 Q. B. 133. (s) Cook V. Harris, i Raym. 367. (t) Barnett v. Guildford, II Exch. 32, per Parke, B. (m) The fact that the mortgagee not in possession can not bring trespass de- serves notice, since, from the rule that no action can be brought except for the infringement of a common law right {see ante), it might, perhaps, be erroneously inferred that the mortgagee, who is the legal owner of the land, and not the 362 PARTIES TO ACTIONS. actions for interference with the use or immediate en- joyment of real property must be brought by the person in possession, is, that when land 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 for merely enterhig 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." iz) [340] SUBORDINATE RULE II. For any permanent injury to the value of land, or other rcat property, i. e., for any act zvJiich interferes with tJie 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 mortgagee, who is not in posses-ion, 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, ve^t immediately, and, therefore, a lessee of tithes may maintain trespass for taking them away im- mediately they are set out." Lush, Practice, 3rd ed., 15 1, citing Wentw. 2gO. (x) Baxter v. Taylor, 4 B. & x\d. 72. (y) Pilgrim V. Southampton and Dorchester Rail. Co., 18 L. J. 330, C. P. (2) 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 mainfain 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 injui-ious 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." [e) It is often difficult to decide whether a gi^ ^n act is or is not an injury to the reversion. Where, foi example, liofht is obstructed, the owner can sue becau: ^ the act {l>) See Addison. Torts, 31-d ed., 278, 279. (c) Alston V. Scales, g Bing. 4, per Curiam. {d) Baxter v. Taylor, 4 B. & Ad. 72. {e) Baxter v. Taylor, 4 B. & Ad. 76, per Parke, J. 364 PARTIES TO ACTIONS. may be a denial of his right 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 being 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 t\\i ^^)''.mises would, if the nuisance were continued, sell foj 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 injury done to the inheritance, the necessity is involved o^ 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 plaintiff''s land. In the two former case? 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 (J.) 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 bidlding, 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. Fetch, 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. {h) 4 Burr. 2141. (?) 1 1 A. & E. 40. (/(■) Rich y. Basterfiekl, 4 C. B. 7S3 ; 16 L. J. 273, C. P. GENERAL RULES. 365 Baxter v. Taylor, (/) where a person trespassed, asserting a ri_^-ht of wa}-, and is not distinguishable from Mum ford V. Oxford, &c., Railway Company, {ni) where the action was brought against the defendants as occupiers of cer- tain sheds, for making noises there which caused 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." {n) In a case {0) 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 de^ndant, — 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 perminent an injury to the plaintiff's rever- sio lary interest as the building of a waU. 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 {I) 4 B. & Ad. 72. (w) r H. & N. 34 ; 25 L. J. 265, Ex. («) Simpson v. Savnge, 26 L. J. 53, C. P., per Curiam. \o) Mumford v. Oxford, &c., Rail. 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, (/) which is for the jury to find or not according to the evidence. I, there- fore, think upon the whole that the declaration is suf- ficient." {g) The same act which injures 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) (/) When 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, {ti) a value which it is obvious may fall far short of the value of the tree. Personal property. — " Personal property [by which is h'jre meant goods or things moveable] is essentially the (p) 5 C. B. sgq. {q) Kidgill v. Moore, 9 C. B. 378, 379, per Maui.E, J. There are some acts. such as cutting 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, and of course prove at the trial, that they are a cause of damage to him. MetropolU lan Association v. Pelch, 27 L. J. 332, C. P., judgment of WiLLES J. (r) Hosking V. Phillips, 3 Exch. 16S ; 18 L. J. I, Ex. {s) Beddingfield v. Onslow, 3 Lev. 209. (/) Addison, Torts, 3rd ed., 279. (u) 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 undamaged at the end of the 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, (j/) X.'s act is, moreover, in this case, an interfer- ence as well with B.'s right to immediate possession, as Avith A.'s reversionary interest, or right to future posses- sion, [z) {x) Williams, Personal Property, 7th 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. iy) This expression as applied to goods is, though not strictly accurate, con- venient, and sanctioned by good authorities (Bullen, Pleadings, 3rd ed., 395 ; Mears v. London and South-Western Rail. Co., 11 C. B., N. S., 850 ; 31 L. J. 220. C. P.). {z) The terms, right of possession, right to possess, right to possession, are, in conformity with general usage, used as synonymous. Strictly speaking, a right of possession is any right which arises from the fact of possession. A right to possession is the right to possess, which may, no doubt, arise from pos- session, but may also arise from other circumstances. It need, perhaps, scarcely be noted that the right to possess a chattel, either immediately or at some future time, includes in it ii .' right to possess it uninjured. 368 PARTIES TO ACTIONS. The general rule under consideration gives rise, when applied to personal property or goods, to the two follow- ing subordinate rules : — SUBORDINATE RULE III. Ally person may sue for an interference with the possession of goods, zi'ho, as against the defendant, has a right to the immediate possession of such goods ; and no person can sue for zuhat is merely such an interference zvJio has not a rigJit 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 " t back on demand. He is then gi>dty of a wrongful detainer, and liable to an action of detinue. X. takes the horse and sells it. In this case he con nits an act of what is technically called conversion, which [346] may be defined as " a wrongful interference with goods by taking, using, or destroying 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 let ween trover and detinue, (c) The plaintiff has often a choice as to which of these actions he will bring. They are all brought lor interferences with his right to immedi- (a) Compare Bullen, Pleadings, 3rd ed., 290 ; Biirroughes v. Bayne, 5 IT. & 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.). {b, Compare Fouldes v. Willougliby, 8 M. & V\^ 540 ; Leame v. Bray, 3 East, 593 ; Addison, Torts, 3rd ed. 307-310. {c) Compare Selwyn, N. P., 13th ed., 581, 1276 ; Burroughes v. Bayne, 5 H. & N. 296. 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 irhmediate or future] is alone decided." yd) 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," {e) 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 [347J 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 plaintiff's property in 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, [h) The essential point being the existence on the part of {d) Williams, Personal Property, 7th ed., 26. {e) Selwyn, N. P., 13th ed., I2S3. Compare Wilbraham v. Snow, 2 Wms, Saund. 47 e, 47 g. (/) See Addison v. Round, 4 A. & E. S04, judgment of Coi.ERlDGE, J. (^) Rogers V. Kennay, 9 Q. H. 592 ; 15 L. J. 38 1, Q. B. {h) Williams, Personal Property. 5th ed., 2^. 24 370 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. The ozvncr. — 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, (z) 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 enables 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 the posses- sion, but he does not part with the ownership, which includes the right to possession. If, therefore, B. converts the watch, A. may sue him. A. purchases specific goods. From the moment that the ownership of them has actually passed to him, although he has never had actual possession of them, he may bring an action against X., who converts them. (;;?) Thus, (/) For a contrast between absolute property or ownership and special property, see Webb v. Fox. 7 T. R. 391, 39S. (/) Williams, Personal Property, 7th ed., p. 24; Wilbraham v. Snow, 2 Wms. Saund. 47 a ; iManders v. Williams. iS L. J. 437, 439, Ex. ; 4 H. & N. 339- {III) Wilbraham v. Snow, 2 Wms. Saund. 47 b. Contrast this with the posi- tion of the purchaser of land, who can not bring trespass before entry. The distinction is, that the action for trespass to land depends upon possession ; the action of trover or of trespass to goods, upon the right of possession. See anti. GENERAL RULES. -, 371 "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, )n, 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 w^as 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." {s) 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., the finder, was held entitled to recover, {t) (/) Taylor v. Parry, i M. & G. 604. See 2 Wms. Saund. 47 g, note (///) {q) I. e.,z. sort of temporary or provisional ownership. (r) Wilbraham v. Snow, 2 Wms. Saund. 47 j. (j-) Armory v. Delamirie, i Str. 504 ; j Smith, L. C, 6th ed., 315. (/) Bridges v. Hawkesworth, 21 L. J. 75, Q. B. The finder must, in order 37S PARTIES TO ACTIONS. [356J li" X., a wrong-doer, converts goods in tne 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. ; /. 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 it 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 [/. 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. Rut 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.). (w) See ante. {x) Jeffries v. Great Western Rail. Co., 25 L. J. 109, no, Q. B., judg- ment of Campbell. C. J. GENERAL RULES. 379 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 jus 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, (j/) A. had obtained possession of some 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. {z) 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 are- not in the possession of the servant, but in the possession of the master. A servant, (jv) Leake V. Loveday, 4 M. & G. 972. (s) Buckley V. Grose, 3 B. & S. 566 ; 32 L. J. 129, Q. B. {a) Compare Jeffries v. Great Western Rail. Co., 25 L. J. no. Q. B., judg- ment of WiGHTMAN, J. See both as to the rules with reference to setting up the jus tertii and as to the connection between the right of ownership and the right to bring trover Bourne v. Fosbrooke, 34 L. J. 164, C. P. ; 18 C. B., N. S., 5x5. 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 m.ake 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. {d') 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 hiai, (^) and the bailor may also maintain it, because, as owner of the goods, he has the right of possession, and the [359] bailment is not of such a nature as to vest this right in the bailee solely. (/) The recovery of damages, either by the bailor (b) See R. v. Hey, 2 C. & K. 983 ; R. v. Gibbs. i Dears. C. C. 445, and other cases on larceny ; Smith, Master and Servant, 2nd ed., 284-313 ; and see Ho|5kinson 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 rigiU to possess the goods, but he passes the possession itself to B. If, on the other hany tno ojilee, deprives the other of his right of ac- ti(>.j. (j) By the recovery, moreover, of a judgment in an action for the conversion of goods, the plaintiff's right of prop- erty is barred, and the property vests in the defendant from the date of the conversion, {h) The baihnent may, on the other hand, not be a simple baihnent. It may 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 broiight by the bailee, and not by the bailor, who has parted with the right to immediate pos- session. No one can sue who hus not the right to immediate posses- sion, (i) — 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 already settled that a land- lord could not, under similar circumstances, mamiain 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, vv^hen it will appear that he has not sustained [360] that dam.age which he now seeks to recover in the action." (;«) " Here," adds Lawrence, J., " if the taking of the goods had determined the interest of the tenant in (o-) Bac. Abr , Trover, C. ; Nichnlls v. Bastard, 2 C. M. & R. 6?c). (//) Cooper V. Shepherd. 3 C. B. 266; 15 L. T. 237, C. P.; Buckland v. Johnson, 15 C. B. 145 ; 23 L. J- 204, C P. (i) See Subordinate Rule 3, aiiu'. (/') Gordon v. Harper, 7 T. R. 9. (/) Ward V. Macaulay, 4 T. R.4S9. (w) Gordon v. Harper, 7 T. R. 12, 13, judgment of AsiiURST, J. 382 PARTIES TO ACTIONS. them, and re-vested it in the landlord [z. e., had restored to the landlord the right to possession], I admit that the latter might maintain trover for them ; {n) .... but it is clearly otherwise, for here the tenant's property and mterest did not determine by the sheriff's trespass, and the tenant might maintain trespass against the wrong-doer. He 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. Copley. 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 ijnmediate possession acquired. — Though the (;z) See I'erry v. Heard. 2 Rro. Car. 242. (j>) Gordon v. Harper, 7 T. R. 13, 14, judgment of LAWRENCE, J. (;>) Mil..;ate v. Kebble, 3 M. & G. 100; Rich.irds v. Symons, S Q. B. 90 Bradley v. Copley, i C. B. 6S5 ; 14 L. J. 222, C. P. (17} Manders v. Williams, 4 Ex. 343, judgment of P.A.RKE, B. (r) Benjamin, Sale, 594 ; Milgate v. Kebble, 3 M. & G. loo. Compare Mar- tindale v. Smith, i Q. B. 389 ; Stephens v. Wilkinson, 2 B. & Ad. 320. GENERAL 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, {t) and before the credit has expired, X. sells. A., not being in default, may bring trover against X., or against the purchaser. {2c) 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 immediate possession restored or re-vested. — A bailor who has 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 [362] 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 right to the possession (as a general rule) revives, and he may (j) Miltjate v. Kebble. 3 M. & G. 100; Benjamin, Sale, 594. (/) Martindale v. Smith, I Q. B. 389 ; Chinery v. Viall, 5 H. & N. 2S8 ; 29 •L. J. 180, Ex. ^«) Benjamin, Sale, 594, 595. (xj Chinery v. Viall, 5 H. & N. 288 ; 28 L. J. iSo, Ex. Compare Martin lale V. Smith, i Q. B. 389 ; 10 L. J. 155, Q. B. 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 i-ight to another without losing his right of lien, {s) unless the property has been pledged 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 money, {b) The general principle is perfectly clear; viz., that when a person who has a limited interest in chattels {e. g., .as hirer, lessee, or pledgee of them) does any act wholly mconsistent with the contract under which he has the limited interest (z. 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 of 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)\\G ma}' be said to have violated an implied (v) Scott V. Newinston, 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) D >iiald V. Suckling, L. R. i, Q. B. 5S5. Compare Halliday v. Holgate, L. R. 3, Ex. 299 ; Addison, Torts, 3rd ed., 430. ic) Donald v. Suckling, L. R. i, Q. B. 5S5, 614, judgment of BLACK- BURN, J. {d) 7 Ex. 152 ; 21 T,. y. 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 wholly at variance with the purpose for which he holds them that it may well be said that he has renounced the contract b}' 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 very 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 ar^ 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. R. I, Q. B. 614, 615, judgment of BLACK- BURN, J. (g) Lancashire Wagon Co. v. Fitzhugh 6 H. & N. 502 ; 30 L. J. 231, Ex., esp. 233, for remarks of PoLLOCK, C. B. (A) Legg V. Evans, 6 M. & W.'36. 2S 386 PARTIES TO ACTIONS. " to the decision in the present case, to deter« mine whether a party with whom an article has been pledged, as security for the payment of money, has a right to transfer his interest in the thing pledged (subject to the right of redemption 'n the pawnor) to a third party. I should certainly hesitate to la}^ 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 terms 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 substar^ial damages if the thing pledged is damaged iruthe hands of the third party, or the owner is prejudiced by delay [365] in not having the thing delivered to him on tender- ing the amount for which it was pledged." (?) 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 (J) Donald v. Suckling, L. R. i, Q B. 618, judgment of Cockbwrn, C. J Compare Halliday v. Holgate, L. R. 3, Ex. 299. 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. [Jc] 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 thj 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 guilty of conver- sion." (///) 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. («) " If these goods had been simply taken by a third person out of [B.'s] custody 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 Bradley v. Copley, would certainly have [366] applied ; 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." {o) But a mere wrongful taking of the goods by a third person out of the hands of the bailee is an injury to him, but does not terminate the bailment, or re-vest the right (k) See Chapter XXV. (/) Cooper V. Willomatt, r C. B. 671 ; ,'4 1.. J. 219, C. P. (w) Ibid., I C. B. 6S2, judgment of Tindal, C. J., citing l.oe-clinun v. Machin, 2 Stark., N. P. C, 311. See Bryant v. Wardell, 2 Exch. 479. («) Fenn v. Bittleston, 7 Exch 152 ; 2T L. J. 41, Ex. ( See Coggs v. Bernard, i Smith, L. C, 6ih ed., 177; Addison, Torts, 3rd ed. 407-416. (J)) Burrows March Gas Co., L. R. 5, Ex. 67. GENERAL RULES. 391 stantial 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 of 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 always represented in form as a tort, /. 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 : — 1st. 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. (//) (c) Ibid., 70, judgment of Kelly, C. B. id) Ibid., 73, judgment of MARTIN, B. (y^) See ante. {g) Rule 10. (A) Tollit V. Shenstone, 5 M. & W. 283 ; Winteibottom v. Wright; 10 M. & 392 PA R TIES TO AC TIONS. A change in the form of an action can not substantially affect the liability of the defendant. A defendant, there- fore, who is liable merely on account of a contract, can not be made liable to a person not a party to the contract, simply 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 principle 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." (m) 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. Holliday, 6 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. (?) Tollit V. Shenstone, 5 M. & W. 2S9, per M.\ule, B. (k) Winterbottom v. Wright, lO M. & W. 109 ; 11 L. J. 415, Ex. (/) See forms of action, ante. {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 sliown 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." {ti) 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. {6) 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 for 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 («) Winterbottom v. Wright, 10 M. & W. Ii6, judgment of RoLFE, B. See ante. (p) Alton V. Midland Rail. Co., 19 C. B., N. S., 213 ; 34 L. J. 292, C. P. (/>) Longmead v. Holliday, 6 Ex. 761. 394 ■ PARTIES TO ACTIONS. injury, even though the tort to him be connected with the breach of a contract made with a third pei'son to which the plaintiff is a stranger, {q) It is, however, essen- [373] 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., b\^ fraudulently warranting the gun to be a safe and secure gun; A., the plaintiff, in consequence of this warrant}', 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 denj ing 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 with 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 (y) Langridge v. Levy, 2 M. & W. 519 ; 4,M. & W. 33S ; Gladwell v. Steg- gall, 5 B. & C. 753 ; Marshall v. York, &c., Rail. Co., 11 C. B. 655 ; 21 L. J. 34, C. P. ; George v. Skivington, L. R. 5, Ex. i. {>■) Langridge v. Levy, 2 M. & W. 519; affirmed in error, 4 M. & V/. 338. (j) Ibid., 2 M. & W. 530, per Curiam. GENERAL RULES. 395 instruments and articles, as are dangerous in themselves, at the suit of any 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 thereby sustained damage," {t) 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 guilty of the fraud [was] responsible to the party injured." {ii) 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 by 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 under 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 wrongful act of another should be without remedy." Nor does the principle of the foregoing cases apply to actions for fraud only. " There are other cases, no doubt, besides those of fraud in which a third person, though not a party to the contract, may sue for the damage sustained, if it be broken. These cases occur where there has been a wrong done 10 that person for which he would have had a rio-ht of action, thousfh no such contract had been made {t) Langridge v. Levy, 2 M. & W. 532. («) Ibid. {v) Gerhard v. Bates, 2 E. & B. 476 ; 22 L. J. 364, Q. B. 396 PARTIES TO ACTIONS. [375] As, for example, if an apothecary administerc.'i improper medicines to his patient, or a surgeon nnskillfully 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 impropei 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 guilty 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." (7) 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, 11 Price, 400 ; Gladvvell v. Steggill, 3 Scott, 60 ; 5 B. N. C. 733- (/) Loiigmeid v. Holliday, 6 Exch. 767, 7GS, jud_t;ment of Parke, B. GENERAL 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 was 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 tor 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- [377] ally those arising from the negligence of carriers, are, or are not, torts strictly speaking, i. e., whether they (z) George v. Skivingtoii, L. R. 5, Ex. I. B. being a married woman, the action was necessarily brought by A. & B. , but in principle it may be consid ered an action by B. ; see Rules 29 and 86. {a) Ibid., 3, 4, judgment of Kei.LY, C. B. Conf. Ibid., 5, judgment of Cleasby, B. 398 PARTIES TO ACTIONS. are wrongs independent 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 it 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 plaintiff, 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. \vith the Indian Government, to carry certain persons, of [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 (i>) See, as to the nature of actions for torts founded on contract, a/i/e. (c) Marshall v. York., &c.. Rail. Co., 11 C. B. 655 ; 21 L. J. 34, C. P. ((/) Ibid., 663, 664, judgment of Williams, J.; Collett v. London and Norlh-Western Rail. Co., 16 Q. B. 9S4 ; 20 L. J. 411, Q. B. (e) Austin v. Creat Western Rail. Co., L. R. 2, Q. B. 442 ; 3^ L. J. 201, Q. B. (/) Ibid., L R. 2. Q. B. 445. Judgment of Bl.'VCKBURN, J. Ig) Martin v. Great Indian Rail. Co., L. R. 3, Ex. 9 ; 37 L. J. 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 che 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. : (7) — " 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 contract 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, (/(') that a master can not sue a railway company for damage to him from injuries to his servant when traveling as a passenger by their railway, rests avowedly on the ground that the duty of the company to carry a passenger safely is a duty arising from a contract. " 1 take the law," it is said by Erle, C. J., "to be clear, that where a servant is injured by matter ex delicto, and his {h) In effect that the contract was not with the plaintiff. (i) Ibid., L. R. 3 Ex. 13, per Kelly, C. B. (y) Ibid., 14, judgment of Bramwell, B. ik) Alton V. Midland Rail. Co., 19 C. B., N. S., 213 ; 34 l>. J. 292, C. P see ante 400 PARTIES TO ACTIONS. master in consequence loses the benefit of his services, 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. (;«) 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., in) 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. e., 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., {p) again, was not decided with [he 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- ered, have reference to the admissibility of a plea in (/) Ibid., tq C. B., N. S., 236, 237, 239. judgment of Erle, C. J. (w) 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. 201, Q. B. ; xMarshall v. York, &c., Rail. Co., 21 L. J. 34, C. P. ; 11 C. B. 655 ; Collett V. London and North-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, E.x. I. («) L. R. 2, Q. D. 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. O) L. R. 3Ex. 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 2>o. — 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. {(/^ 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 the 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) {(/) Broom, Parties, 2nd ed., ss. 256-259 ; Coryton v. Lithebye, 2 Wms. Saund. 116. (r) Coryton v. Lithebye, 2 Wms. Saund. 117 a. (j) 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 plaintiffs, 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 of3fice 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, it) So two or more partners may join in an action of slander for words spoken of them in the way of their trade. (?/) 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. lib, note 2. See Broom, Parties, 2nd ed., s. 257. (?/) Cooke V. Batchelor, 3 B. & P. 150; 2 Wms. Saund. 117 a, 117 b; Le Fanu V. Malcomson, i H. L. C. 637 ; Lindley, Partnership, 2nd ed., 481, 482. As to actions by partners, see Chapter XXL {x) 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. {a) See Rules g2 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 abatement. See Rule 117. ' As to relative rights of action of heirs or devisees and per- sonal representatives, see Dobbs v. Guljidge, 4 Dev. & Batt, 68; Roosvelt v. Ellethorp, 10 taige, 415; Thomas v. Came- ron, 16 Wend. 579; Varick v. Bodine, 3 Hill, 444; Flinn v. Chase, 4 Den. 85 ; Grim v. Carr's Administrators, 3 Pa. St. 523. Where one Carr, in his lifetime, falsely represented to plaintiff that he had obtained a divorce from a former wife, who was living apart from him, and thereby induced plaintiff to marry him, which she did, discharging all her duties to him as his lawful wife for two or three years, when he died, — Held, in Pennsylvania, that an action for the deceit could not be brought against the deceased's estate, either by the plaintiff, or by the child she had borne him. And so in New York it was held that the personal representatives of a deceased father could not maintain an action for damages for the seduction of a daughter. George v. Van Horn, 9 Barb. 523; and see Blakeney v. Blakeney, 6 Port. 109. The executor may sue on notes due the testator, even though secured by mortgage specifically bequeathed. Cryst v. Cryst, Smith's Indiana Reps. 370; Brink v. Means, 11 B. Mon. 217. Or for trespass. Kennerly v. Wilson, i Md. 102; Upper Appotomac Co. v. Harding, 11 Gratt. i. Unless the tort occurred in testa- tor's lifetime. Moore v. Clayton, 3 S. & M. 373 ; McLaughlin V. Dorsey, r Har. & McH. 224. And it is no objection that the action arose out of tort. Dickerson v. Tyner, 4 Blackf 253 ; and see Salliday v. Bessey, 2 Jones, 349 ; Millenberger v Schlegel, 4 Barr, 244. But the administrator of a grantee ol land containing covenants which run with the land can not sue without showing a special damage to his intestate. Mar- tin V, Baker, 5 Blackf 232 ; Nettles v. D'Oyley, 2 Brev. 27. 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 out, not the injury 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 ol the goods, {a) {a) See ante, and />^j/, 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 partv libeled, and the other by him and his [385] co-partners ; but the damage in the fiist action must not appear to be joint, nor must that in the second {a) An unincorporated company, as already pointed out, is in substancp a firm. See, however, as to companies empowered to sue by a public otlicer, anfe. See Rule 117. (b) See ante. (c) Rule 80. 81. {d) Cooke V. Batchelor, 3 B. & P. 150 ; Foster v. T.awson, 3 Bing. 4 2; Williams v. Beaumont, ro Bing. 260 ; Metropolitan Saloon Company v Haw- kins, 4 H. & N. 87 ; 28 L. J. 201, Ex. 4o6 PARTIES TO ACTIONS. appear to be confined to the libeled partner only, [e) [f 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." {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 part 7ter sue 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 him to injure the other partners, they can maintain a joint action against the persons so colluding." (//) 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, (/) 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, T Stark, 191. (g) X Lindley, Partnership, 2nd ed., 481. (A) Longman v. Pole, Moo. & Mai. 233. \i) 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 by bond to keep it safely, it was held, that he could not maintam 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. {m) 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. (/' ) Higgins V. Thomas, 8 Q. B. 908 ; Jones v. Brown, 25 L. J. 345, Ex. ; Mayhew v. Herrick, 7 C. B. 229. (k) Holliday v. Camsell, 8 T. R. 358 (/) Mayhew v. Herrick, 7 C. B. 229. {m) See Bullen, Pleadings, 3rd ed., 272, 716. (m) Rules Bg and 90. {o) See as to unincorporated companies, ante. (/) See ante. 4o8 PARTIES TO ACTIONS. An action for tort can, however, sometimes be brought 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 nuU. The trustee can also treat as void some acts of the bankrupt, on account of their fraudulent character. Hence, if A. and B. are partners, 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 exchange 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, in 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 partners, 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 Vf B., not being in partnership, and after the commission of an act of bankruptcy, sold goods to X., who knevv^ of the act of bankruptcy, the trustee could, even though X. had paid for the goods, bring an action of trover against him. iq) Thomason v. Frere, 10 East, 418. (r) Heilbut v. Nevill, L. R. 4, C. P. 354- (s) See ante. (/) Fox V. Hanbun'. Cowp. 445 ; Smith v. Stokes, 1 East, 363 ; Buckley v. Barber, 6 Ex. 182 ; 2 Lindley, rarlncrbhip, 2nd ed., 111S-1123. HUSBAND AND WIFE. 409 CHAPTER XXII. HUSBAND AND WIFE. Rule 86. — A husband and wife must sue jointly in three cases : — I. 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, I 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 actionable only because they [390] cause damage, and the damage results from them {a) See Bullen, Pleadings, 3rd ed., 338, 339. For the explanation of the rule that a wife can not, during coverture, sue without her husband, and of the exceptions thereto, see an/e. The rule and the exceptions apply as well to actions for tort as to actions on contract. (b) Milner v. Milnes, 6 T. R. 627, 631. See Lush, Practice, 3rd ed., 158 ; Bullen, Pleadings, 3rd ed. 339. 4IO PARTIES TO ACTIONS. after the marriage, A., the husband, must apparently sue alone, (r) To the rule under 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 goods bailed or come to the hands of another before marriage are detained afterwards, the husband may sue alone as on his own possession, (d) . . . If a nuisance be erected before marriage, and continued afterwards, producing a temporary damage to the husband, he alone may sue. (^) If a feme sole possessed of a term for years in a close has in right thereof a wa}^ 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." (/) ( 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. {Ji) 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 thereby [391] (through loss of service) to the husband, {i) The (c) The offense sued for is here in reality the causing of damage by certain slanderous expressions, and as this injury is not committed until the damage is caused, i. e., until after the marriage, it affords no real exception to the princi- ple that a wife must join in an action for wrongs done to her before marriage. Compare Saunders v. Edwards, i Sid. g5 ; 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. 1 {e) Frosdick v. Sterling, 2 Mod. 269. | {f) Baker v. Brereman, Cro. Car. 419. {g) Lush, Practice, 3rd ed., 158, 159. {h) Ibid. ii) 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 wife, 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, 1852, 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 necessarily 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 injury to the wife, the husband may bring a separate action for his claim in his own right in respect of the same injury. (/) 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 ; (;//) but the husband must sue alone for consequential damage ; («) and so also, if the words are not actionable in themselves, but only because they cause damage; (0) and now (though [392] the husband may sue alone for the damage to him- self) there may, under the section of the Common Law (/) Brockbank v. Whitehaven Junction Rail. Co., 7 H. & N. 834 ; 31 L. J. 340, Ex. (k) Hemstead v. Phcenix Gas Co., 3 H. & C. 745 ; 34 L- J- loS, Ex. {D Bullen, Pleadings, 3rd ed., 338. (m) Dengate v. Gardiner, 4 M. & W. 5. {n) Ibid. {o) Saville v. Sweeney, 4 B. & Ad. 514 ; Broom, Parties 2nd ed., s. 281. 412 PARTIES TO ACTIONS. Procedure Act, 1852, before cited, be combined in one declaration 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, [p) Effect of death.— \n 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, {(j) Rule 87. — A husband may sue either alone or 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. (/>) Bronm, Parties, 2nd ed., s. 286 ; Serres v. Dodd, 2 B. & P. 407 ; Roper, Husband and Wife, 2nd ed.. 189 ; Thomp-on v. Pinchell, ir Mod. 177. Kq) See ante ; Capel v. Powell, 34 L. J. 168, C. P. ; Head v. Briscoe, 5 C. & P. 484. Chapter XXX. (r) Bullen, Pleadings. 3rd ed.. 339; Bidgood v. Way. 2 Blackstone, 1236; Wallis V. Harrison, 5 M. & W. 142 ; i Wms. Saund. 2gi m. (s) Co. Litt. 185. HUSBAND 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 m this case he might also sue jointly with his wife, {u) 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 enjoyment of the property. {%>) The general rule, thei-efore, 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. (,r) 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." (-s-) (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 Addi- son, Torts, 3rd ed., 917. («) Lush, Practice, 3rd ed., 160. {v) Addison, Torts, 3rd ed., 917. {x) Bacon, Abr., Baron and Feme, K. (;') I Rtll., Abr., 347. (2:) Noy, 70. {a) Lush, Practice, 3rd ed,, 160. {b) If the wife's property has, prior to the marriage, been conveyed to trust 414 PARTIES TO ACTIONS. Death. — In cases where the wife may join in suing, 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 injury that may be done to it. (Addison, Torts, 3rd ed., 917.) {c) Non-jiiinder 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., 324 ; 30 L. J. 268, C. P. : Sherrington v. Yates, I2 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 of 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 oi that which has been unlawfully diminished in value, with- held or taken from him. (, note i ; i Williams, Executors, 6th ed., 600. EXECUTORS AND ADMINISTRATORS. aV immediately by the death of the testator, {w) and, there- fore, the executor can ioimediately bring an action for any act injurious to his reversionary 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, (jj') Relation of title. — An executor's title, depends, as already pointed out, {z) 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- tion 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. (w) Ibid., 600, 601 ; Trattle v. King, T. Jones, 170. {x) See ante. (r:i See Barnett v. Guildford, 11 Exch. it) ; 24 L. J. 2S1. Ex. ; Radcliffe v, Anderson, E. B. & E. 806 ; 29 L. J. 12S, Q. B. [z) See a}7te. {a) Tharph V. Stallwood, 5 M. & G. 760; 12 L. J. 241 C. P 428 PARTIES TO ACTIONS. In other words, the letters of administration, wheng. 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) (/') 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. Barwish, Cro. Jac. 231. See Addison, Torts, 3rd ed., 920. As to joinder of plaintiffs, see ante. As 10 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 injury 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 itself 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. {U) (a') Bacon, Maxims, Reg. I. See Broom, Maxims, 4th ed., 215. (/;) See Vicars v. Wilcocks, 8 East, i ; 2 Smith, L. C. 6th ed., 4S7 ; 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 PARTIES TO ACTIONS. [411] The question of what is called remoteness, /. 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, mainl}^ 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., which was prompted by, 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, whereby 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 ver}^ 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 person is liable to be sued who causes injury to another. (/) [412] CoJitributory negligence, (g) — A person is not (c) See anfc. ((/) Vicars v. Wilcocks, 2 Smith, L. C, 6th ed., 4S7 ; Lynch v. Knight, 9 H. L. C. 577- (c-) A-hley v. Harrison, i E-p. 4S ; Taylor v. Neri, I Esp. 386. But see Lun ley v. Gye, 2 E. & B. 216 , 23 L. J. 462, Q. B. (/) Rule 97. (.§") The doctrine of contributory 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 damag-e 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 neghgence 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" (z) The con- tributory negligence of the plaintiff must, in order to free the defendant from liability, distinctly form part of the cause of the damage; z. e., be one of the cir- [413] cumstances without which it could not have been inflicted, (k) (h) Davies v. Mann, lo M. & W. 549, per Parke, B. (?) Tuff V. Warman, 27 L. J. 322, C. P. (Ex. Ch.), judgment of Ex. Ch. {k) Greenland v. Chaplin, 19 L. J. 293, 294, Ex., judgment of POLLOCK C. B. 432 PARTIES TO ACTIONS. The contributory negligence or wrong of a third party- is no defense ; (/) for no one can rid himself of liability for a tort merely by showing that some one else is also liable, {in) i. c, if the negligence of X. damages A., he can not set up 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 employed 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 thino-s, ... 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, {p) and no one is liable to be sued for any wrong of which he is not the cause, {g) 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 L. J. 266, Ex. (w) See Rule 98. (/?) Burrows v. March Gas Co., L. R. 5, Ex. 67. {0) Ibid., 71, judgment of Kelly, C. B. (/) Bacon, .\bi-., .A.ction, B. (^) 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." (/) 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, {ii) Where, however, the injury 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) Lnjiirics to character. — i. Libel. — Every person who publishes, i. e., makes public, a libel, may be sued. The {r) Scott V. Shepherd, i Smith, L. C, 6th ed., 417. (j) Ibid., 418,419, judgment of Nares, J. {() Ibid., 423, 424, judgment of De Grey, C. J. {u) Vandenburgh 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 i>ost. 28 434 PARTIES TO ACTIONS. person, therefore, who makes a defamatory statement, and authorizes its publication in writing, [y) 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, (,c) 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 who 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 liability 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 a rumor, (e) If the slander consist ot 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) Parkes 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. 27S, C. P. {b) Bacon, Abr., Libel, B. i, 2. {c) See ante. (d) Watkin v. Hall, L. R. 3, Q. B. 396. (e) Ibid. 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. by 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, {i) The speaker of 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., judgment of Pollock, C. B. {g) Parkins v. Scott, 31 L. J. 334, Ex., judgment of Bramwell, B. {h) Ward v. Weeks, 7 Bing. 211. (»■) Parkins v. Scott, i H-. & C. 153 ; 31 L. J. 331, Ex 436 PARTIES TO ACTIONS. slander uttered by X. ik) A person who utters a slander is, however, in many cases responsible for the results of its 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, for 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- bility for the damage. (;«) hijuries to property. — i. Real property, or land. — When the act complained of is a trespass, [ii) there can in g-eneral be little difficulty in determining who is the wrong-doer, {p) [418] When the wrong complamed 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 (/&) Taylor v. Neri, i Esp. 3S6 ; Vicars v. Wilcocks, 2 Smith, L. C, 6ih ed, 487, 4S9 ; but compare Lynch v. Knight, 9 H. L. C. 577. (/) Parkins v. Scott, 31 L. J. 334, Ex., per POLLOCK, C. B. (til) 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. Hall, L. R. 3, Q. B. 396 ; 37 L. J. 125, Q. B. («) See ante. {0) As to the liability of all persons who join in a trespass, see Rule gi. GENERAL 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 plaintiff'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. {/) — 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 depriv^ation 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 guilty 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 awav from the plaintiff, or of exercis- [419] mg some dominion or control over them for the benefit of himself or some other person. (?/) 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 persoji's right to immediate possession, he is guilty of a conversion, and liable to an action of trover or detinue, {x) Trover, (j/) — As a conversion is an act actionable 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. (;•) Collins v. Middle Level Commissioners, L. R. 4, C. P. 279. See further as to a defendant's liability for a nuisance, post. (j-) See ante. (t) See Burroughes v. Bayne, 29 L. J. 1S7, Ex., judgment of Martin, B. (u) Addison, Torts, 3rd ed., 309 ; Falke v. Fletcher, 34 L. J. 146, C. P. ; Fouldes V. Willoughby, M. & W. 551. (.r) Wilbraham v. Snow, 2 Wms. Saund. 47 k. The gist of trover is the conversion ; the gist of detinue is the wrongful detainer of goods ; trover is brought to recover damages for the conversion of the goods, whereas the object of detinue is to recover possession of the goods themselves. The distinction between the two (as to which, see Burroughes v. Bayne, 5 H. & N. 2g6 ; 29 L, J. rSs, Ex.) is of little importance for the present purpose. {y) See ante. 438 PARTIES TO ACTIONS. I St. It may be hard to settle whether a given act amounts to a conversion, i. e., 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 biliiard-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. {z) 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, [b) 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. & N. 311, judgment of BRAMWELL, B. (*) Pillot V. Wilkinson, 32 L. J. 201, Ex. ; 2 H & C. 72. GENERAL RULES. 439 them, and the defendant refuse to deliver them up, in order to constitute a conversion, {c) 2ndly. As every 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-f the same goods, and each therelore 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., {c) " 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, (^) an action lies not only against the bailee, but also against a bona fide purchaser ; (//) and the owner can sue an auctioneer, (z) or a pawn- broker, (y) 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 trespass, 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, 2 Wms. Saund. 47 i. So an act which 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. 219, C. P. {/) McCombie v. Davies, 7 East, 5. ( g ) See, as to the question how far a sale in all cases determines a bailment, ante. {h) Cooper v. Willomatt, i C. B. 672 ; 14 L. J. 219, C. P. ; liardman v Booth, I H. & C. 803 ; 32 L. J. 105, Ex. (i) Grimshaw v. Atwell, 8 C. & P. 6. (/) Packer v. Gillies, 2 Camp. 336. Compare Donald v. Suckling, L. R. I Q. B. 585. 440 PARTIES TO ACTIONS. actionable only because of the damage which they cause. In considering whether a given person can be sued, the points to be weighed are, first, whether the damage com- plained of be not mere damage without injury ; {k) and, secondly, whether the defendant be so connected with the 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 hif 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. (;//) 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 give rise. (/) 2 Selwyn, N. P., 13th ed., 10S2-1084 ; Addison, Torts, 3rd ed., 159, 160; Penruddock's Case, 5 Coke, loi a. (»/) 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 injury it causes, by showing their inability to remove it without exposing themselves to another action." () Ibid., 4 C. B. 800, 801, S04, S06, per Curiam. GENERAL RULES. 443 X. & Y. owned the soil of a stream which supplied water to two print-works. M., whilst occupier of both works, erected a weir across the stream, and thereby diverted the water from one of the works. A., becoming lessee of the last-mentioned w^ork, and entitled to the water of the stream, removed the weir. M., afterwards, and without any authority 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 statutory provisions to remove the wreck or anchor, or responsible for the damage caused by them. (/) An owaier 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, where X. let his horse stray into a road, and A., a child, was kicked {c) Saxby 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 use of it, Fletcher v. Rylans, L. R. i, Ex. 265, 279 ; Jones v. Festiniog Rail. Co., L. R. 3, Q. B. 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) Hancock 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; 17 L. J. 227, C. P. ; R. v. Watts, 2 Esp. 675 ; Bartlett v. Baker, 3 H. & C. 152 ; 34 L. J. 8, Ex. {g) Rylands V. Fletcher, L. R. 3, H. L. 830; Judge v. Cox, i Stark, 285 ; May V. Burdett, 9 field, L. R. 3, Ex. 220. (a) Kemp V. Neville, 10 C.' B., N. S., 523 I 31 L. J. 158, C. P. \y) Garnett v. Feriand, 6 B & C. 615. (z) Tozer v. Child, 7 E. & B. 377 ; 27 L. J. 151, Q. B. (Ex. Ch.). {a) Calder v. Halkett, 3 Moo. P. C. 2S ; Gelen v. Hall, 2 H. & N. 379 \ 27 L. J. 73, M. C. {b) Kemp V. Neville, 10 C. B., N. S., 523; 31 L. J. 15S, 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. 121, M. C. ; 3 B. & S. 620. (/) See note (/), next page. GENERAL RULES. 447 fact. (/) In Hoiilden 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 of 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, (Ji) yet he can not give himself jurisdiction by a decision with regard to the facts on which the jurisdiction depends, {i) Magistrates, constables, &c. — Magistrates, constables, &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. {Jc) And though an action can be brought for acts done without or in excess of jurisdiction without alleging malice or w^ant 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 in 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, &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 wdien once such demand has been complied with. (//) (/) See Calder v. Halkett, 3 Moo. P. C. 28 ; 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. Halkett, 3 Moo. P. C. 28. (^) Kemp V. Neville, 10 C. B., N. S., 551, per CURIAM. {h) Ibid., 10 C. B., N. S., 523 ; 31 L. J. 158, C. P. ; Mould v. Williams, 5 Q. B. 469. ( i ) Mould v. Williams, 5 Q. B. 469. I {k) II & 12 Vict. c. 44, s. I. (/) Told., s. 2. («) 24 Geo. II. c. 44, s. 6; Atkins v. Kilby, 11 A. & E. 777; Clark v. 448 PARTIES TO ACTIONS. Persons are also often to some extent protected either because they belong to particular classes or have done the acts complained of whilst acting under or in pursu- ance of particular statutes. Such persons may, indeed, be sued, but they are 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 plaintiff 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 of Woods, 2 Exch. 395 ; 17 L. J. iSg, M. C. See as to officers of county courts, 19 & 20 Vict. c. loS, s. 5o. {o) 24 & 25 Vict. c. 99, s. 33. ip) I & 2 Will. IV. c. 22, s. 73. (<7) 10 & II Vict. c. 82, s. 17. (r) 24 & 25 Vict. c. 96, s. 113. {s) 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 nhird, but for the whole, of the damage done to A. ; and when X. has paid the whole of the damages, he can not compel 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, {t) There does not exist, in short, any joint liability for a wrong in the sense in which there exists a joint liability for a breach of contract, and the position of joint wrong- doers is most clearly 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 [u) com- pel him to make 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. To?'t must be Joint. — Where an action is brought against several co-defendants it is essential that the wrong com- plained 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, (j/) 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 (/) Menyweather v. Nixan, 2 Smith, L. C, 6th ed., 481. (m) See ante. {)') Coryton v. Lithebye, 2 Wms. Saund. 117 c, note {g)\ Wilbraham V. Snow, Ibid., 47 u, note ( i). 29 450 PARTIES TO ACTIONS. A., the successive wrong- doers can not be sued together, because they are each guilty of a different act of conver- sion, t. e., of a different tort, {s) Therefore, when bank- rupts and their assignees were joined as defendants in an action of trover, and a verdict passed against all the defendants upon 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 bankruptcy, 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. Jl7ial %vrongs can be Joint.— TXiq 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 bv examining who are the persons liable to be sued for a special kind of trespass, viz. : [433] Trespass tuider color of legal proceedings, or false imprisonment. (^)— 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 {i). (rt) See NicoU v. Glennie, i M. & S. 588. (b) Petrie v. Lamont, I Car. & M. 96. i,c\ Wilbraham v. Snow, 2 Wms. Saund. 47 x. {d) This tort requires special notice, from the fact that a large number of 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^oods,..^.^., where they are wrongfully taken in execution. GENERAL RULES. 451 cation for his act. When, therefore, a trespass is com- mitted under color C){ 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. Bat 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, " since 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 attorney 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) Riddell v. Pakeman, 2 C. M. & R. 33 ; Blanchenay v. Burt, 4 Q. B. 707. (/) Brooks V. Hodgkinson, 4 H. & N. 712 ; 29 L. J. 93, Ex. ; Codrington V. Lloyd, 8 A. & E. 449 ; Barker v. Braham, 3 Wils. 396. {i,^) Collett V. Foster, 2 H. & N. 356 ; 26 L. J. 412, Ex. ; Esp. 414, judgmenl of Pollock, C. B. {h) Blanchenay v. Burt, 4 Q. B. 707. 452 PARTIES TO ACTIONS. The sherift' and his officers can not be sued. The reason of this is that all the sheriff and his officers need do is to look to the writ, which is the order of the court to them, and see whether it justifies their proceedings. If it does, the writ itself can be pleaded in defense of their acts under it. {i) 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, (/«) 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 [435J 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, {11) 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. Braliam, 3 Wils. 376 ; Countess of Rutland's Case, 6 Coke, 54 a. i^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 bad 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. Bl. 845. (w) Andrews v. Marris, I Q. B. 3 ; Parsons v. Lloyd, 2 W. Bl. 815. («) Parrott v. Mumford, 2 Esp. 585. Expressions are used in Wood v. Finnis whicli imply that the liability of a sheriff extends beyond 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 a 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" {0) 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. (/) The plaintiff and his attorney are not liable unless they interfere in the execution of the writ, in which case they are. {q) 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 foi 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 ought to have been several actions, in like manner, as two persons can not bring a joint action for words ; and so it was resolved by the court, for these several causes can {0) Woods V. Finnis, 7 Exch. 371, per Curiam. See Smart v. Hutton, 8 A. & E. 568 ; Gregory v. Cotterell, 5 E. & B. 571 ; 25 L.J. 33, Q. B. (Ex. Ch.) Raphael v. Goodman, 8 A. & E. 565. (/) Slack V. Brander, r Esp. 42 ; George v. Perring 4 Esp. 63. {q) Meredith v. Flaxman, 5 C. & P. gg. Conf. Cronshaw v. Chapman, 7 H. & N. gii : 3t L. J. 277, Ex. ; Collins v. Evans, 5 Q. B. 820 ; 13 L. J. 180, Q. B. ; Childers v. Wooler, 29 L. J. 129, Q. B. ; Humphrys v. Pratt, 5 Bligh, N. S., 154 ; Davit^s v. Jenkins, ii M. & W. 745 ; 12 L. J. 386, Ex. ; Rowles v. Senior, 8 Q. B. 677 ; 15 L. J. 231, Q. B. ; Green v. Elgee, 5 Q. B. gg ; 14 L. J. 162, Q. B. The sheriff is not liable for arrest'of privileged persons. Countess of Rut- land's Case, 6 Coke, 54 a ; Philips v. Naylor, 3 H. & N. 14 ; 27 L. J. 222, 223, Ex. ; 4 H. & N. 565 ; 28 L. J. 225, Ex. (Ex. Ch.). 454 PARTIES 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 wrong-doers 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. are 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 exception 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 ; («) 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 " oy recovery in trespass for taking, or trover for (>■) Coryton v. Lithebye, 2 Wins. Saund. 117 c. {s) Ding V. Hoaie, 13 M. & W. 494; 14 L. J. 29, Ex. (/I Cooper V. Shepherd, 3 C. B. 266 ; 15 L. J. 237, C. P. (m) Marston v. Phillips, 12 W. R. S. yx) Wilbraham v. Snow, 2 Wms. Saund. 47 d c, note (2). 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 founded on contract. (^) — As a plaintiff can be compelled by a plea in abatement to sue all of several co- contractors, but may, 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, in other words, whether he can avoid a plea in abatement by 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 matter founded in contract, [438J thousfh the form of the action be case for malfeas- ance or non-feasance, and the plea not guilty [i. e., though the' action be in form an action for tort], the defendant [mayj plead it in abatement, {a) . . . and from all the cases, and especially from Bretherton v. Wood, {b) 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 ; {c) 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 plea in abatement if he omit any defendant, or to a {y) Ibid. 47 ^ sion. PRINCIPAL AND AGENT. 473 servant, instead of doing that which he is emphjyed 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 servant 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 ovvm, 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, (w) 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- [45^] ing badly, {ri) P. and Co., an omnibus company, 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 held that if the driver, being irritated, acted carelessly, wantonly, or maliciously, but in the course of his employment, and in doing that which he believed to be for the interest of his employers, then they were, in spite of their orders, (/) Mitchell V. Crasweller, 13 C. B. 237 ; 22 L. J. 100, C. P., per Maule, J, (ni) Croft V. Alison, 4 B. & Aid. 590. (;;) Smith, Master and Servant, 2nd ed., 191 ; Sleath v. Wilson, 9 C. S: P 612, 474 PARTIES TO ACTIONS. responsible for his act ; {o) for, " if a master employs r. servant to drive and manage a carriage, the master is answerable for any misconduct of the servant in driving or managing it, which can fairly be considered to have resulted from the performance of the functions entrusted to him, and especially if he was acting for his master's benefit and not for any 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 agahi. 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- ful 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. {21) On the other hand, in the following cases employers have been held not liable, on the ground that the acts of {o) Limpus V. London General Omnibus Co., 32 L. J. 34, Ex. (E.k. Ch.). (/>) Ibid., 39, judgment by \ViLLlAM.s, J. (r/) Ibid., 41, judgment cf Blackburn, J. (»-) Seymour v. Greenwood, 6 H. & N. 359 ; 30 L. J. 1S9, Ex. ; 7 IL & N, 355 ; 30 L. J. 327, Ex. (Ex. Ch.). {s) Seymour v. Greenwood, 30 L. J. 192, Ex., judgment of MARTIN, B. {t) Joel V. Morrison, 6 C. & P. 501. See Wlialman 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, drove 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." ( j) " 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 fai 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 ?.i 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 entirel}^ new and independent journe}^ which had nothing at all to do with his employment." {b) So a master was hf Id not to be liable when his servant, who was authorized to distrain cattle doing damage on his master's land, dn-ve th i plaintiff 's hoises, which were on the highway, on t-': {x) Mitchell V. Crasweller, 13 C. B. 237 ; 22 L. J. 100, C. P. (t) Ibid., 22 L. J. 103, Q. B., judgment of Maule. J. (2) Ibid., J04, ju(lL;ment of Creswell, J. in) Story v. Abhton, L. R. 4, O. B. 476. [b) Ibid., 479, per Cockburn, 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 scrvanf s mistake of lazu. — 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. {/) " 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) Lvons V. Martin, 8 A. & E. 512. As to a servant's authority to contract arising from the couri^e of his emp'oymer.t, see Walker v. Great Western Rail Co., L. R. 2, Ex. 228 ; Cox v. Midland Counties Rail. Co., 18 L. J ^5, Ex. ; 3 Exch. 268. For furiher examples of a master's liability for torts committed by his servant, see Smith, Master and Ser^-ant, 2n(l ed., 1S8-194. {ere responsible for the neglect of their general agent, he having the means and power to keep the elevator in repair, and that notice to such general agent was notice to the defend- ants that the elevator was out of repair, and the defendants were consequently guilty of gross negligence in omitting to repair it." In M alone v. Hathaway, not yet reported, but referred to in the Albany Law Journal, vol. 13, p. 174^ the same court reversed a verdict for plaintiff where deceased, an employee in defendant's brewery, was killed by the fall of a mash-tub, which was proved to have been substantially re-built and perfectly safe when deceased entered the employment, and about eleven months before; and where the failure to look to the supports afterwards was the fault ot Bagley, a co-servant, foreman of carpenters, against whose competency and skill nothing Was alleged. Distinguishing the case from Laning v. New York Central R. R. Co., and Flike v. Boston and Albany R. R. Co. cases (cited supra), on the ground that those were ases of corporations, which can only act by and through 486 PARTIES TO ACTIONS. can not be maintained against 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, iz) It was at one time thought {ci) that this exception protected trustees or corporations for the gratuitous (z) Canterbury's Case, i Phil. 306. \a) Metcalfe v. Hetherington, 24 L. J. 314, Ex. ; 11 Ex. 257 ; 5 H. & N. 719 ; Holiday v. St. Leonard's, Shoreditch, 30 L. J. 361, C. P. ; il C. B., N. S. 192. servants; and from the case of Corcoran v. Holbrook, 59 N. Y. 517, on the ground that in the latter the defendants were absent, and had delegated all their powers and devolved all their duties upon a general agent or superintendent. And see Brickner v. New York, &c., R. R. Co., 49 N. Y. 672; Holmes V. Clark, 10 \Vend. 405 ; Hoey v. D. &. B. R. R. Co., 8 Id. 930 ; Hoffman v. New York, &c., R. R. Co., 55 N. Y. 608; Keegan V. West. R. R. Co., 8 Id. 175 ; Noyes v. Smith, 28 Vt. 59 ; Ford v. Fitchburg R. R. Co., no Mass. — ; Snow v. Housatonic R. R. Co., 8 Allen, 441. As to when the negligence of an agent of the master is not negligence of the master, see Faulkner v. Erie Ry. Co., 49 Barb. 328 ; Albro v. Agawam Canal Co , 6 Cush. 75 ; Hart v. Vermont, &c., Ry. Co., 32 Vt. 473; Wright V. New York, &c., R. R. Co., 25 N. Y. 562 ; Warner v. Erie Ry. Co., 39 Id. 468. As to contributory negligence on the part of the servant, see Spooner v. Brooklyn City R. R. Co., 31 Barb. 419; Nicholson v. Erie Ry..Co., 41 N. Y. 528; Russell v. Hud- son River R. R. Co., 17 Id. 137 ; Sprong v. Boston, &c., R. R. Co., 60 Barb. 30 ; Dougan v. Champ., &c., Co., 6 Lans. 430 ; Stewart v. President, &c., 12 Allen, 58; Connolly v. Davidson, 15 Minn. 519; Wonder v. Baltimore, &c., R. R. Co., 32 Md. 41 1 ; Harper v. Indianapolis, &c., R. R. Co., 47 Mo. 567 ; Davis V. Detroit, &c., R. R. Co., 20 Mich. 105 ; Lalor v. Chicago, &c., R. R. Co., 52 111. 401 ; Chicago, &c., R. R. Co. v. Murphy, 53 Id. 336 ; and, generally, Perry v. March, 25 Ala. 657 ; McGlynn V. Brodie, 31 Cal. 376; Corbin v. American Mills, 27 Conn. 274; Hayden v. Smithville, &c., Co., 29 Conn. 548; Pensacola, &c., R. R. Co. v. Nash, 12 Fla. 497 ; Indianapolis, &c., R. R. Co, V. Love, 10 Ind. 554 ; Carey v. Courcelle, 17 La. Ann. 108; Buzzell V. Laconia Co., 48 Me. 113; Harrison v. Central R. R. Co., 31 N. J. L. 293 ; Johnson v. Brunei, 6 Phil. (Pa.) 554; Haines v. East Tennessee, &c., R. R. Co., 3 Coldw. 222. 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 oi 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, &c., 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. (yC) 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." ic) Hence, a servant 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 ie. g., as being a pubhc 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 ib) Mersey Docks Co. v. Gibbs, L. R. i. H. L. 93 ; 33 L. J. 225, Ex. (H. L.). (c) See Smith, Master and Servant, 2nd ed., 2;t, and following Story, Agency, .«. 308-312. {d ) Sands v. Child, 3 Lev. 352 ; but see Buron v. Denman, 2 Ex. 167. (if) 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 wrong-doer, {g) If, again, an auc- tioneer is employed by 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, {i) " 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. (;//) " 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) Story, Agency, s. 311. (i ) Farebrother v. Ansley, i Camp. 343. (i) Perkins v. Smith, I Wilson, 328, per Lee, C. J. (/) Ibid. (m) Stepliens v. Elwall, 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. (;z) 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 impHed 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." {d) 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, is) \>i) Lee v. Robinson, 25 L. J. 249, C. P. ; Lee v. Bayes, 18 C. B. 599, 607. Compare Alexander v. Southey, 5 B. & Aid. 247, with Wilson v. Anderton, i B. & Ad. 450 ; Smith, Master and Servant, 2nd ed., 244-246. (p) Story. Agency, s. 309. This is in reality an application of the princip'e that no one can sue for the breach of a contract except the party with whom it is made. See Rule 10. (/) Lane v. Cotton, 12 Mod. 4S8. {q) Compare Story, Agency, ss. 310, 31 1. {s) It has been suggested that a servant is not liable for an injury to his fellow-servant in the course of their common employment (Southcote v. Stanley, I H. & N. 247 , 25 L. J. 339, Ex. See 25 L. J. 340, Ex., judgment of PcL- LOCK, C. B. Compare Alhro v. Jaquith, 4 Gray, Rep. (Amer.) 99 ; Farwell v. Boston and Worcester Rail. Co., 4 Mete. (Amer.) 49). But the correctness of this view is most doubtful. 490 PARTIES TO ACTIONS. Can the principal and agent be jointly sued? — A master and servant can certainly be sued jointly when they are I liable in the character of joint wrong-doers, e. g., [466] where the servant trespasses by order of the mas- ter, [x) The preponderance of authority is further in favor of their liability 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 railway 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, {p) SUBORDINATE RULE. An action for tort may be bronght either against the princi- pal or against the immediate actor in the zurong, 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 course 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 ante. ( y ) See ante. {z) Stevens v. Midland Rail. Co., 23 L. J. 32S, E.x. ; 10 Ex. 352. {a) Hall V. Smith, 2 Bing. 156. {b) Compare Michael v. Alestree, 2 Lev. 172; Whitamore v. Waterhouse, 4 C. & P. 383 ; Parsons v. Winchell, 5 Cush. (Amer.) 592, where all the cases are reviewed. () 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. ie) 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, 4S6; Pearson v. Skelton, i M. & W. 504 ; Adamson v. Jarvis, 4 Bing. 66. (£■) 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. (<5) 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, for 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 mahcious prosecution, or libel, involving the existence of malice. [471] A corporation or company, being an abstract thing, must always act through agents, (/) and are («) A corporation, or incorporated company, can sue for wrongs to itself by its corporate name in the same manner as other persons. There is nothing to prevent a coiporation from suing one of its own members. (Metropolitan Saloon Omnibus Co. v. Hawkins, 28 L. J. 201, Ex. ; 4 II. & N. 87.) {b) As to nature of corporations, see ante. {c) Metropolitan Saloon Omnibus Co. v. Hawkins, 28 L. J. 202, Ex. ; per POLLUCK, 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 Omnibus Co., i H. & C. 526 ; 32 L. J. 34, Ex. (Ex. Ch.) ; l Lindley, Partnership, 2nd ed., 306. (/) Bullen, Pleadings, 3rd ed., 300 ; National Exchange Co. of Glasgow v. Drew, 2 McQ. 103, esp. judgment of Lord Cranworth, p. 123-127 ; and see Ferguson v. Wilson, L. R. 2, Ch. App. 89. CORPORA TIONS. 495 liable for the negligence of their servants committed by them in the course of their employment, {g) and it has therefore been held that the Bank of England was liable for a wrongful detention of goods b\' the bank's servants. {h) 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 ttie corporation, or within the scope of the servant's employ- ment, {i ) Can a corporation be sited for fraud ? — There is good authority for the statement that " an action for fraud can not be maintained against a corporation." (7) " 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 i-emedy but an action for the fraud, must seek his remedy against the directors personally." {k) " The pnnciple (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, H. L. 93; 35 L.J. 225, Ex. (H. L.). {/i) Yarborough v. Bank of England, 16 East, 6. (i) Stiles V. Cardiff Steam Boat Co., 33 L. J. 310 Q. B. ; i Lindley, Part- nership, 2nd ed., 305, 306. (7) BuUen, Pleadings, 3rd ed., 300 ; We-tern Bank of Scotland v. Addle, L. R. I, Sc App. 145. (k) Western Bank of Scotland v. Addle, L. R. i, Sc. App. 167, judgment of Lord Cr.\nwortii. 496 PARTIES TO ACTIONS. a company. The fraud must be a fraud, that is, either personal on the 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. When a person 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 their 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." (?//) 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, (;z) and have thus laid dow-n the law. " It is said, [on behalf of the defendant ] 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 necessar}'- 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. i, Sc. App. 157, 15S, per Chelmsford, Ch. («) Barwick v. English Joint Stock Bank, L. R. 2, Ex. 259 (Ex. Ch.). CORPORA TIONS. 497 Aands, 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." (o) The law on the poiut 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, (/) 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." [g) {r) {0) Barwick v. English joint Stock Bank, L. R. 2, Ex. 266, judgment of the Exchequer Chamber delivered by Wii.LES, 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 I,ife Assurance Co. V. Ayscough, 6 E. & B. 761 ; Nicol's Case, 3 De G. & J. 387 ; Blake's Case, 34 Beav. 639. (r) I Lindley, Partnership, 2nd ed., 326. See, further, Cox, Joint Stock Companies, 7th ed., 3S, 39. 32 498 PARTIES TO ACTIONS. CHAPTER XXIX. INFANTS, (a) Rule io6. — An infant may be sued for torts com- T.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 (a) 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. {l>) And, of course, therefore, a person who has attained his majority may be sued for torts committed during infancy. (c) See ante. (J) Manby v. Scott, I Lev. 4 ; 2 Smith, L. C, 6th ed., 396. (tf) 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 fraudulently representing himself of full age, and thereby inducing the plaintiff to contract with him. {g) if) Bernard v. Haggis, 4 C. B., N. S. 45 ; 32 L. J. i8g, C. P. (g) Price V. Hewitt, 8 Ex. 146; Liverpool Adelplii 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. 5CX) 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 fo2indcd on 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 fornj of an action for tort. (<:) Exception. — Wliere 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. (b) Catterall v. Kenyon, 3 Q. B. 310. (<■) As to a married woman's incapacity of contracting, 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 any 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 any kind which a feme covert could make whilst she knew her husband to be alive, that could not be treated as a fraud ; for every such contract would involve in itself a fraudulent representation of her capacity to contract." {e) Where, again, a married woman fraudu- lently represented to the plaintiff, that a bill was accepted by 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 maintained against the wife and husband. (/) Effect of death.— On the death of the husband [478] the wife remains liable (subject to the exception already mentioned) for all torts committed by her before id') F.iirhurst v. Liverpool Loan Association, g Ex. 422 ; 23 L. J. 163, Ex. (e) Ibid., 23 L. J. 164, 165, Ex. judgment of Pollock, C. B. (/) Wright V. Leonard, 11 C. B., N. S. 258 ; 30 L. J. 365, C. P. ; Johnston V. Pye. I Lev. 169 ; S. C, i Keb. 913 ; Cooper v. Withan, i Lev. 247 ; Can- nara v. Farmer, 3 Exch. 698. 502 PARTIES 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 separately 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. ih) 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 {i) is an authority that for wrongs committed by the wife during coverture, the kg) Wright V. Leonard, 30 L. J. 367, C. P., judgment of Willes, J. ^/;) Except, of course, torts which she may have committed as his agent. (?) 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. 168, 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 io8. — 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 pi'oveable 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) (a) Bankruptcy Act, 1869, ss. 31 and 49. (i>) Parker v. Crole, 5 Bing. 63. (c; Griffith & Holmes, Bankruptcy, 2nd ed., 964. (d) Compare, as to things in action. Bankruptcy Act, 1869,55. 4 and 22. The latter certainly suggests the 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 (2. c, 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, c. 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 [482] 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 broug+it 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. — x\ctions 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, {e) Exception 3. — Actions for tort brought in the form of actions on contract. This is an exception in reaUty, but not in 'form. In order to avoid the rule that actions for wrongs do not survive, actions were often brought in the form of 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. (<:) See 2 Williams, Executors, 6th ed., 1602, 1603. ((/) 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., 1599. EXECUTORS AND ADMINISTRATORS. 507 realm against a common carrier was considered {/) to be an action for a tort, and therefore not to lie [483] airainst 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 a7zte. {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. jCh.). 508 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) (rtf) 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. (/') 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. (d) 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., t3th 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 this 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. K. 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 [486] action of ejectment that the plaintiff 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" {c) 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 plaintiff 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 by 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 thei-efrom. : 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 default 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 explanatton, 3 Staph., 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. (Jk) See Rule 3. EJECTMENT. 511 IS 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. {ni) 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, {n) and an equitable defense can not be pleaded in ejectment. {0) As, generally speaking, a merely equitable title to the land is not sufficient to support an ejectment, {p ) 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, {q) 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 tenancy 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. Hughes v. Jones, 9 M. & W. 372, 377 ; i Dowl. N. S. 352 ; Fenny d. Eastham v. Child, 2 M. & S. 255. (w) It may, however, be convenient to join the name of X., which can be done in action of ejectment, see post. {11) Baker v. Mellish, 10 Ves. 554 ; Doe d. Davies v. Evans, 9 M. & W. 48. \o) Neave v. Avery, 16 C. B. 328 ; 24 L. J. 207, C. P. (p) See Cole, Ejectment, 73. {q) Cole, Ejectment, 462 ; and see Ibid., 462- 82, as to actions by mort- gagee and by mortgagor. (r) See C. L. P. Act, 1852, ss. 219, 220, for special provisions for the pro- tection of mortgagors. 512 PARTIES TO ACTIONS. sue the mortgagee if the latter turns him out of posses- sion, as every tenant has to sue his landlord if the latter dispossesses him during the tenancy, since the landlord does not, during 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 with success where the defendant, e. g., as being his ten- ant, can not deny that the plaintiff has a legal right. (/) 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, (j) 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. {£) 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, (j) Doe d. Harvey v. Francis, 4 M. & W. 331 ; 7 D. P. C. 193 {t) Cole, Ejectment, 73. («) Doe d. Costa v. Wharton, 8 T. R. 2 ; Hill v. Saunders, 2 Bing. 112. (j-) Moss V. Gallirrore, i Doug. 279. (jj') 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. 515 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, {p) 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 i)rior to the issue of the writ which he chooses to name. The plaintiff gains some advantages b^ placing his title as eai-ly 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 Januar}^ 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 entry 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. & \V. 333. Kb) See Cole, Ejectment, 288, 289. Compare the rules as to the person to bring trespass, ante. (^) {h) Clay V. Oxford, L. R. 2 Ex. 55, judgment of Bramwell, B. (?) 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, 1S60. s. 19. The following points should be noted: — I. Amendments should, except in one or two cases, be made by the court or a judge. NON-JOINDER AND MIS-JOINDER. 525 Non-joinder. — If A. sues where A. and B. ought to sue, the 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 b}^ either of them singly. (;«) Aviendment. — 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 thai can not be made after verdict (Wickens v. Steel, 2 C. B., N. S., 488 ; 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 wnmg (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. Bailantyne, 29 L. J. 149, 150, Q. B.). 3. The power to make amendments depends upon its appearimg that no injustice will be done by the amendments (C. L. P. Act, 1852, ss. 34, 35, 37). Hence, plaintiffs will not be added or struck out unless the persons to be so added or struck out consent, or unless, in the case of mis-joinder, the person to be struck out was originally introduced without his consent (Ibid., 34, 35). 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 advantage (Ibid., 35). 4. C. L. P. Act, 1852, s. 222, and the analogous sections of the C. L. P. Acts, 1854 and i860, do not (except, perhaps, in the case of ejectment, Blake V. Done, 7 H. & N. 465 ; 31 L. J. 100, Ex.) apply to amendments affecting the joinder of parties, Robson v. Doyle, 3 E. & B. 396 ; Wickens v. Steel, 2 C. B., N. S., 488 ; Wilkin v. Reed, 15 C. B. 192 ; 23 L. J. 193, C. P. (/) Bullen, Pleadings, 3rd ed., 469. (w) Compare Cabell v. Vaughan i Wms. Saund. 391 k, 1, m. n. 526 PARTIES TO ACTIONS. in abatement, or at or before the time of pleading gives notice in writing (;z) 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 m 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 (n) C. L. P. Act, 1852, £?. 34-36. {0) Ibid., s. 36. ( p) Ibid., s. 34. {q) Ibid., s. 35. (r) Ibid., s. 35. (j) See Bremner v, Hull, L. R. i C. P. 748. \t) 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 brought, 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 the defendant, though unsuccessful, shall be en- titled to his costs occasioned by joining any person or persons in whose favor judgment is not given, unless otherwise ordered by the court or a judge." NON.yOINDER AND MIS-JOINDER. ^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. {11) 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 joinc^d, it was held (jj/) 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 plaintiff, by declaring in this way, may prevent the defendant from pleading in abatement, which otherwise she would be entitled to do. It could never have been the intention of the legislature when it says you may leave out one plain- 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." (;?) 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 plaintiffs. The judgment will be given in favor of the trustee, {a) The misjoinder of plaintiffs in actions ex contractu affects — (ti) See ante. {x) Bellingham v. Clark, I B. & S. 332. ( v) Stubs V. Stubs, 31 L. J. 510. Ex. (2) Stubs V. Stubs, 31 L. J. 513, Ex., judgment of BramwelL, B. {a) See ante. 528 PARTIES TO ACTIONS. I St. Set-off. — The defendant can prove his set-off by showing 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. {b) 2ndly. Second action. — 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 ir6. — 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. {e) 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 I {b) C. L. P. Act, 1S60, s. 20. (c\ Ibid., s. 21. \d) Ibid., 1852, ss. 34, 35. {e) Whelpdale's Case, 5 Coke, irg a ; Richards v. Heather, I B. & Aid. 35 ; Rice V. Shute, i Smith, L. C, 6th ed. 511 ; Cabell v, Vaughan, I Wins- Savnd. 291 b, 291 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. (/) Amendment. — 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, {li) and it appears clear that neither the court nor a judge have any power to remedy the non-joinder of a defendant Misjoinder. — If 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 pos/. (g) The Common Law Procedure Act, 1852, ss. 3S, 39, contains provisions to secure that the defendant added be placed in as good a position as if ihe action had originally lieen commenced against him, and that the party who-e negligence or error causes the amendment shall in any case pay the c-»st of It. (/i) Garrard v. Giubelei, 11 C. B., N. S. 616, 832; 31 L. J. 131, 270 C. P. (j) C. L. P. Act, 1852, s. 37- 34 530 PARTIES TO ACTIONS. Rule 117. — 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 L'OStS, Non-joinder. — In an action by A. for tort, which ouf^ht to be broug-ht bv 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; ijc) for if the defendant does not object to the non-joinder, he will be liable for such [50S] portion of the damages as was incurred by the plaintiff alone, though not for more. (/) Amendment.— T\\Q rule is the same as in an action on contract, {in) Mis-joinder.— T\\Q. rule is the same as in an action on contract. («) Rule i 18. — 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. {o) Amendment. — The non-joinder of defendants can not be amended, for it is not an error. Mis-joinder— \{ X. and Y. are surd where X. alone ought to be sued, Y. is entitled to a verdict and his (,k) Bullen, Pleadin-s. 3nl ed., 708. (/) Sodgwor.h V. ONciend. 7 T. R. 279; Bloxam v. Hubbard, 5 East, 407, (w) See ante. («) See ante. (c) See ante NON-JOINDER AND MIS-JOINDER. 531 costs ; but his being- wrongly joined does not affect the liabiUty of X., the real wrong-doer. (/) Amendment. — The plaintiff may always remedy the error before the trial, by entering a nol. pros, as to the persons wrongl}' 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 founded 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. (/) {f) Govett V. Radnidge, 3 East, 62 ; Bretherton v. Wood, 3 B. & B. 54 ; Pozzi V. Shipton, 8 A. & E. 963. ((j) See ante. ^ \f) Cabell V. Vaughan, r Wms. Saund. 291 g. (s) Cabell v. Vaughan, r Wms. Saund. 291 n ; and 291 /, note ; Ansell v. Waterhouse, 6 M. & S. 385. (0 See further, Bretherton v. Wood, 3 B. & B. 54 ; Pozzi v. Shipton, 8 A. & E. 693 ; Govett v. Radn^dge, 3 East, 62 ; Ansell v. Waterhouse, 6 M, & S. 3S5 ; Powell V. Layton, 3 B. & P. 365. 532 PARTIES TO ACTIONS. SCHEME AS TO JOINDER OF PARTIES. A. Actions on CoTitract. a. Plaintiffs. 1. Non-joinder. — Fatal unless amended, 2. Mis-joinder. — Leads only to increased costs. b. Defendants. 1, Non-joinder. — Gives rise to a plea in abatement. 2. Mis-joinder. — Fatal unless amended. B. Actions for Tort. a. Plaintiffs, 1. Non-joinder. — Gives rise to a plea in abatement. 2, Mis-joinder. — Leads only to increased costs. b. Defendants, 1. Non-joinder. — Has no effect. 2. 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, Z 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 want 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 the infringement of a right, 28 may be brought for any infringement of a legal right, 50 may be brought for causes arising out of the jurisdiction, 55 but such actions must be transitory and not local, 55 may under certain circumstances be brought by aliens for wrongs committed abroad, 55, 56 in interpreting contracts the courts follow the lex loci ; but in their procedure the lex fori, 56 can not be brought for a public nuisance, 61 except by those who have sustained particular damage, 61-64 nor for a wrong which amounts to a felony, 64 534 INDEX. \The references art Actions — Continued. 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 plaintiff and defendant, 65 application of this rule, 65, 66, 155 broui^ht by a wrong plaintiff, or against a wrong defendant, must fail, 499 Administrator. See Executors and Administrators. Advertisement, offering a reward, 85, 86 Agent. See 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 where 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-joixder. 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 tor^ 16 Bailees, actions against, may be brought either on contract or for tort, lb may mainlain 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 eo mayginal papng.\ IISUEX. 535 BailiflF. See Shekifk. Bankruptcy. See Husband and Wife, Partners, Set-off. ihe trustee now occupies the same po.^ilioll the a^sif^iiee did, iSg, n. [a) on the bankruptcy of a firm, actions must be brought by tlie trustee or trustees, 159, 3S6 on the bankruptcy of one or rnore partners, by tlie solvent partners, and the tru.- personal property after his death, 406-408 but they can not sue for injuries to his person, feelings, or reputation, 40^ excep: 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 tiieir own names, if executors do not sue within six months, 405 this action is maintainable, though the circumstances under which the death was caused amount to felony, 4of> to marginal txis^ing.'] INDEX. SA ') Executors and A.6.mmi%\xa.\.ors—Contiuited. can not be sued for torts committed by deceased, 481 except injuries to property witliiu 3 '-^ 4 ^^'i^l- ^'^ ■ c- 42, — 481, 282 actions for dilapidations, 482 actions for tort in forms of actions on contract, 482, 4S3 when they should join in ejectment, 492, 493 False imprisonment. See Tort. every person unjustifiably interferin;^' with the liberty of another, is a trespasser, 433 Felon, can not sue in liis 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 Ca.MI'HEU.'s Act, for compensating the families of those killed by accidents, 65, 406 Feme covert. See Marrik.d Women. Finder of goods. See 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 c<->ntracts 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, 447-449 Heir. See Covenants running with the Land. is the real representative of the deceased, as the executors and adminis- trators are personal representatives, 205, 206 must sue on covenants real broken during the lifetime of deceased, 211 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 .-^ue for any wrong done to deceased, 40S Husband and Wife. See Chose in Action. wife can not sue without her husband, 17I 544 INDEX. {References art Husband and Wife — Contimud. except where the husband is civilly dead, 172 or has abjured the realm, 172 or is legally presumed 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 I 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 pci-sonal chattels in possession of wife generally become the absolute propsrty of the husband. 174 her choses in action only become his if and when he reduces them into possession, 175-179 effect of death, 180, 184, 392, 394 of divorce, I So, 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, 1S7, 394, n. W 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, 3OT-503 what are necessaries for wife, 302, 303 effect of error as to joinder of parties, 304, 305 in tort husband and wife mnst sue jointly in three cases, 389 for injuries to vv-ife before marriage, 389, 390 for personal injuries to wife during coverture, 390-392 for injuries for which wife mu.vt sue as executrix, 392 how husband can recover for damage caused to him by injury on wife, 390-392 to marginal paging.] INDEX. 545 Husband and Wife — Con fin tied. husband may sue alone or with wife for injury to land of which both are seized, 392, J93 except in case of permanent injury to wife's freehold, 303 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. See 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, 2S3, 474 except contracts for necessaries, 284 and contracts in respect of permanent property, 29O 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 during 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 iujui'ed by a tort, 11 all persons by whom a contract was made should be sued on it, II when partners in a firm shoul 1 join in suing on contracts made with the firm, 1 51-15 5 when on torts, 384, 38^ where husband and wife should join, 174-180, 3S9-392 where trustee of bankrupt husband should join with wife, 187, 394 n. (c) when more ihan one truscee in banlsruptcy all must join in suing, 202 co-executors and co-administrators must join in suing, 219 except where a contract is made with some of them only, 219 35 54^ INDEX. \Referejices are Joinder — Contin tied. 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 wrongs 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. Sing. See Sovereign. Land. See Covenants running with the Land, Ejectment, Landlord AND Tenant, Nuisance. who is liable for injuries to, 417, 418 for nuisance on, 422-425 owners of, 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 responsible for nuisance on land, 422, 423 where tenant, 424 to marginal paging? INDEX. §47 Landlord and Tenant — Continued. 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 Legacy. See Executors and Administrators. Legatee. See Executors and Administrators. when 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 Limitations, 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 against one or more joint debtors is barred by, the others should be sued alone, 231, 232 " Limited " Company. .S^i- Corporation, Principal and Agent. Liquidator. See Corporation. Local action. See Actions, JuRiSDiCTroN. Lord Campbell's act. See Executors and Administrators. (9 & 10 Vict. c. 93), for compensating the families of decea-ed person* killed by negligence, 404-406 Lunatic, can sue and be sued, 2 Magistrate, is to a certain extent protected from actions, 429 Marriage. See Husband and Wife. Married Woman. See Contract, Husband and Wife, Tort. can sue or be sued. 2 is not liable for contracts made during coverture, I2 but is liable for torts committed then, 12, 476 except torts founded on contract. 21, 476 if joint contractor, the other contractors must alone be sued, 233 Master and Servant. .S'^'c- Principal and Agent. master can not sue railway company for damage done to his sen'ant while a passenger, 18 if master employs servant to buy goods on credit, he must pay for all he buys, 244 ahorse-dealer is bound if his servant warrants a horse without author- ity, 245 K^g INDEX. [References art Master and Servant — Conlinued. but not anybody else, unless he sends bis servant to sell it at a fair or mart, 245, 246 master may sue for injury toservant 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 it ere servant are in master's possession, not ser- vant's, 358 master can never s-ue for what is a mere injury to his servant, 383 nor servant for mere injury to his master, 3S3 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 bcrvant 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, 455-45S 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 coi-porations appointed for the gratuitous performance of public works, 462 servant is liable for acts of misfeasance, 463, 461. but not for acts of nonfeasance, 463, 465 Mesne profits, action of trespass for, 498, n. (q) Mis-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, — leads only to increased costs, 507, 509 of dcfendnnts, effect of. — in contract, I2, 506, 50c> is fatal unless amended, 506, 509 to marginal pa^ilhig.'] IJSDJsX. S49 Mis-joinder— Cc;////; //(■(/. in tort, 12, 508, 509 leads only to increased costs, 50S, 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, gi-ioi is sometimes independent of contract, 91, 92 someiimes 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, 4'.3, 415 includes actions for tort and brea.ch of contract, 36S-3S0 who liable for negligent driving, 441, 442, 456—458 Necessaries. See Hushand and Wife, Infant, Parent and Child, Non-joinder. See Husband and Wife, Joinder, Misjoinder, Partners. of plaintiffs, effect of, 11 in contract, II, 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, 50S, 509 Nuisance, if public is indictable, 61 therefore no action lies, except at the suit of one wlio has sus- tained damage fiom it overv\hat is common to o.hers, 61 what is such particular damage, 61-64 every person who creates or continues a nuisance i> liable, 422 wdiere landlord responsible for nuisance on tenant's land, 422, 423 where vendor of land, 423, 424 where tenant or occupier, 424 Outlaw, can not come into court except to reverse his outlawry, 3 therefore he can not sue, 3 but he is liable to be sued, 4 Owner, ^tv Animals, Damage, Land, Tort, Trover, . Parent and child, father is not liable for goods supplied to infant son, 2gl 5SO INDEX. {References art Parent and Gb3l&.—Cont:mted. though slight evidence of his having authorized the supply is sufficient, parent may sue for injurj' 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 Partners, ^tv Joinder. Umncorporated Company. ■a. tirm. 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 cveiy partner qua his fellow partners is both principal and agent, 149, 155, 266 et seq. all partners in the firm at the time a contract is made should join in suing for the bieach of it, 151 therefore a retired partner must always join in suing on a contract mnde while he was a member of the firm, 153 & dormant partner always may, 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 tlie 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 parfner 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 parrtner 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 another 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 contract to furnish capital, 15 S 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 bankntptcy 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 makes the trustee tenant in common with the solvent partners of all the partnership property, i&o to marginal paging. 1 IN DhX. 55 1 P artners — Con tin tied. under certain conditions the trustee may use their names, if they are unwilling to sue, i6o or they may use his, on indemnifying him, l6l in actions against, dormant or nominal partners need not be joined, 233 though it is best to join them, 233 all persons 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 7ieed, 268, 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, 270, 271 a retired partner may be sued on contracts made while he belonged to the firm, 271 one partner 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 bankruptcy 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 those who were partners at the time the wrong was done must sue for it. 385 how far one partner can sue another for tort, 385, 386 who should sue for tort on the bankruptcy of the firm, 386-38S all or any of the partners may be sued for a wrong committed by the firm, 468 except where partners are sued as co-owners of land, 438, 439, 469 when they should join in ejectment, 492, 493 Pilot, owner of vessel is not liable for damage caused by, 461 Police Officers. See Constables. Possession. See Tort, Trover. Principal and Agent. See Master and Servant, Partners, Ratifica- tion. principal must sue on contract made with him through an agent, 130 if made by his authority, 130 or subsequently ratified, 130-133 the agent can not sue, 133 except — where he is contracted with by deed in his own name, 134 where he is named as a party to a bill of exchange 134 where the right to sue on the contract is by its terms expressly restricted to him, 135 where the contract is made with the agent himself, 136 where he is the ostensible principal, 138 or where he has made a simple contract in his own name for an undisclosed principal, 13S 552 INDEX. \References are Principal and Agent — Contimied. where he has made a contract in the subject-matter of which he has a special interest or property, I3g where he has paid away his principal's money under circumstances which give him a right to recover it baclv. 140 the 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 principal, 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 235 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 express authority, 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 ■where 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 the v^untract, 254 where he contracts (not under seal) for an undisclosed principal, 256 where money has been paid to him under mistake, or obtained hy tort, 257 where he has signed contracts for a " limited " company without using the word limited, 259 where agent only must be sued, 252-254 to marginal paging:] INDEX. 553 Principal and Agent — Continued. where either piincipal or agent may be sued, 254-262 limitations to this right of choice, 260-262 agent who contracts wiihout 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 nis knowledg?, 264, 265 if agent accepts bills without authority for himself and others he is liable personally on the bill, 264 principal can never sue for mere injury to agent, 3S3 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 the wrong but not against an intermediate agent, 466 except in the case of ma^ter of ships, 467 Privileged communications. See Libel, Slander. Privity of contract. See Chose 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, 18, 370 et seq. exceptions to the general rule, 90 et seq. actions by a person appointed by statute to sue for others, go actions which may be brought either by principal or agent, 90, 9I some actions for money had and received, 91 et seq. Protected persons. See CoNSTAKLEb, Judges, Magistrates. some persons are to a certain extent protected from actions, 427-430 Queen. See Sovereign. Queen consort, can sue and be sued as a feme sole, I Railway companies, can not be sued by master for damage done to servant while passenger 18 how far actions against, for injuring passengers, are on contract or for tort, 18, 19 Ratification. See Infant, Principal a.nd Agent. of a contract has a retrospective effect, 131 554 INDEX. {References art Ratification — Continued. may take place after action brought, 131 can only take place where the contract was professedly made on behalf of plaintiff, 132 a contract can not be ratified by a person not in existence when it was made, 132 it must be ratified wholly, if at all, 133 the ratification must not put the defendant in a worse position than he 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 bs set aside except in cases of fraud, I08-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, 41 1, 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 Con- 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 law one, 41 ' and not an equitable one, 43 e-very 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 respect 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. 72 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-ofiF. See Equitable Plea, Partners, Principal and Agent, Trustee. in case of trustee, 46, \1 to viargmal paging^ INDEX. 555 Set-off — Con /in ucd. in case of principal and agent, 142, 143 a debt due from one partner can not be set off against debts due to the firm, 154 nor debts from the firm against debts due to one partner, 15 \ exceptions to this princi])Ie, 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, 1S1-185 but not debts due from him only, 185 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, 1S5 in bankruptcy, debts can be set off as in an ordinary action, 200 mutual credits can be set off, 200 all debts and demands which are provable against the bankrupt's estate, 20T , 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, 21S for debts due to them as executors, defendant can not set off debts due from deceased, 2i3 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 cany not beset 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 a.ction against husband and wife, 299 executors or administrators, 319 Sheriff, liability of, 433-435 when liable for acts of bailiff, 435 Ship. See Pilot. Simple contract. See Contract, CoNsinERATioN, Privity of Coxtract. is a 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. So that is the person from whom the consideration for the promise moves, Bi' except, actions by persons empowered to sue by statute, 90 556 INDEX. \ References an Simple Contract — Continued. actions brought by an agent, go, gi some actions for money had and received, 91-10T is not made by a mere promise, there must be a consideration. Si 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, 105-10S. can not be framed so as to give the promisees the right to sue upon it both jointly and separately, ill 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 nor if privileged. 31 nor (sometimes) without special damage, 54 the original utterer and the repeater arc each liable, 415-417 the utterer is not liable for a spontaneous and unauthorised repetition, 416, 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, 63 ■ Statute of Limitations. See Limitations, Statute of. Surgeons, actions against, for want of skill may he 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, 12S except covenants with tenants in common, 12S in ca^e 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- tiitives, 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 companies 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. 3S2 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, P'elony, Foreign Law, Lex Loci, Trespass, Trover. action for, 9 any person injured, 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, i6, 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 treating breach of contract as tort 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, 5 5-6 J' 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, 338 trespass must be brought by tenant in possession, and not by landlord 339 ■ ■ ^ A but reversioner must sue for permanent injury to land, 2^0 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 enliiled 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 the con- tract, 370, 380 persons who have a separate interest, and sustain separate damage, must sue separately, 80, 3S1 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 3S0-3S2 riifht of action for a tort can not be assigned, 3S2 558 - INDEX, ^References art Tort — Con tit! lied. on dealh of one of the parties jointly wronged, right of .-fction passes to survivors, 3S2 no one is liable for an injury of which he is not the cause, 410 nor for the remote and indirect results of his acts, 410 nor if the damage is partly occasiDned by the negligence of the person injured, 75, 412, :]I5 any person who causes an injury to another is liable to be sued by him, 413 a person is liable for the mode in which he uses his land or his goods, 421-425 how far 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 cr 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. action for, 24 lies for entry upon land in the occupation of another, 333 can 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, 49S, n. {q) 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 unless plaintiff relies not on actual possession, but on his right to pos- session, 357 may sometimes be brought by either bailee or bailor, 35S, 359 tv marginal paging.'] INDEX . 559 Trover — Con tin tied. can be brought l)y no one wlio has not a right to immediate possession 359 how this right may be acquired or restored, 36i-')65 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 trust, 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. (