DANTS. 8. Mar riage. DEFEN- her during that time (u); but a woman by birth an alien, and the wife of an alien, cannot be sued as a feme sole, if her husband has lived with her in this country, although he has left her here, and entered into the service of a foreign state (x). In the case of a feme covert executrix or administratrix, she must be joined with the husband in an action on any personal contract of the deceased (y); and if a man marry an administratrix to her former husband, who had wasted the assets during her widowhood, they may be jointly sued for such devastavit (z); but for rent due during the coverture on a lease which the wife has as executrix, the husband may be sued alone (a). Where husband When the husband survives, he is not liable to be sued in that character for survives. any contract of the feme made before the coverture, unless judgment had been obtained against him and his wife before her death (131); and if she die before judgment the suit will abate (b). But if the husband neglect, during her life, to reduce her choses in action into possession, the creditor may sue the person who administers thereto, for debts due before her marriage (c); and for rent accruing during the coverture, or for money due upon a judgment obtained against husband and wife, he may be sued alone as the survivor (d). Where wife sur vives. In case the wife survive, she may be sued upon all her unsatisfied contracts made before coverture (e). But the bankruptcy and certificate of the husband [68] will discharge her from all liability to satisfy debts which could have been proved under his commission; and if the husband and wife be sued jointly, his bankruptcy may be pleaded in bar (ƒ) (132). Conse mistakes. However, we have seen that the discharge of her husband under the Insolvent Act does not preclude a creditor from taking a married woman, having separate property, in execution for a debt contracted by her dum sola (g). If the husband be sued alone upon the contract of his wife before coverture, quences of and the objection appear upon the face of the declaration, the defendant may demur, move in arrest of judgment, or bring a writ of error (h). If the contract were misdescribed as being that of the husband, the plaintiff would be nonsuited under the general issue at the trial, upon the ground of a variance (c) 3 P. W. 409; Rep. temp. Talb. 173. (d) 3 Mod. 189, n. (k); 6 Mod. 239; Com. Dig. Bar. and Feme, 2 B. (e) 7 T. R. 350; 1 Campb. 189. (ƒ) 1 P. W. 249; 2 Ves. 181; Cullen, 392. (g) Ante, 65; 8 B. & C. 1; 2 Man. & R. 124, S. C. (h) 7 T. R. 348; 2 Chit. Rep. 697. tor of the husband, who obtains judgment against him, after he and his wife have been notoriously separated for nine years. Bouslaugh . Bouslaugh, 13 Serg. & Rawle, 361.} A father placed the proceeds of lands under the control of a son, for the benefit of a daughter who was a feme covert; held, that no action could be maintained at law in the name of the husband and wife; the remedy being in equity. Duval and wife v. Covenhoven, 4 Wend. Rep. 561. (131) Buckner r. Smith, 4 Desau. Ch. R. 371. Beach v. Lee, 2 Dall. 257. (132) In an action against husband and wife for the debt of the wife, contracted by her while sole, a plea that the husband is an infant is no bar to a recovery. Roach et al. r. Quick and wife, 9 Wend. Rep. 238. Prior to her marriage, the wife was responsible for such debts, and unless the liability to pay them attached to the husband, her creditors would be remediless, as she cannot be sued alone separate from her husband; and if she could, a judgment against her would be fruitless, as all her estate is absolutely or qualifiedly vested in her husband. Reeve's Dom. Rel. 234. Barnes, 95. DANTS. between the contract stated in the declaration and that proved. But if the II. DEFENwife be sued alone upon her contract before marriage, she must plead her coverture in abatement, or a writ of error coram nobis must be brought; and the 8. Marriage. coverture in such case cannot be pleaded in bar, or given in evidence upon the trial as a ground of nonsuit (i); and if she marry pending an action against her, it will not abate, but the plaintiff may proceed to execution without noticing the husband (k). But if a feme covert be sued upon her supposed contract made during coverture, she may in general plead the coverture in bar, or give it in evidence under the general issue, or under non est factum, in the case of a deed (1). And if the husband and wife be improperly sued jointly on a contract after marriage, the action will fail as to both (m) (133). II IN ACTIONS IN FORM EX DELICTO. RULES. The rules which direct who are to be the parties to an action in form ex GENERAL delicto, whether as plaintiffs or defendants, may, as in actions in form ex contractu, be considered with reference, 1st, to the interest of the plaintiff in the matter affected, and the liability of the defendant; 2dly, the number *of the [*69] parties, and who must or may sue or be sued; 3dly, where there has been an assignment of interest, &c.; 4thly in the case of survivorship; 5thly, where the party injured, or committing the injury, is dead; 6thly, in the case of bankruptcy; 7thly, insolvency; and, 8thly, in that of marriage. TIFFS. to sue, with refer The action for a tort must in general be brought in the name of the person I. PLAINwhose legal right has been affected, and who was legally interested in the property at the time the injury thereto was committed (n); for he is impliedly 1st. Who the party injured by the tort, and whoever has sustained the loss is the proper person to call for compensation from the wrong doer. A cestui que trust or other person having only an equitable interest, cannot in general sue the Courts of common law against his trustee (134), or even a third per (i) 3 T. R. 631; 2 Roll. Rep. 53; Sty. 280; Bac. Ab. Bar. and Feme, L. (k) 2 Stra. 811; 4 East, 521; Cro. Jac. 323; Bac. Ab. Abatement, G. () 12 Mod. 101; Salk. 7; 3 Keb. 228; Bul. N. P. 172; 2 Stra. 1104. in (m) Palm. 312; ante, 66. (133) A count charging man and wife upon a joint assumption in consideration of money had and received by them to the plaintiff's use is bad. Grasser and wife v. Eckart and wife, I Binn. 575. (134) { It is otherwise in Pennsylvania, for the reason stated in the next note. Reese D. Ruth, 13 Serg. & Rawle, 434. But since the passage of the act of 29th March, 1823, entitled "A supplement to the act to compel assignees to settle their accounts," &c. (Purd. Dig. 64.) complete relief may be had in the mode of proceedings provided by the act, which is nearly as effectual as the proceedings in a regular Court of Equity; and it is questionable whether an action at law would now be sustained by the courts. See Rush v. Good, 14 Serg. & Rawle, 226. } It is now the settled law of the state of New York, that a mortgagor has the legal estate and seisin of the land until foreclosure, or entry by the mort gagee. Sedgwick v. Hollenbach, 7 Johns. Rep. 380. {Stanard v. Eldridge, 16 Johns. ence to the interest of the plain tiff. TIFFS. 1. Who 1. PLAIN= Son (0) (135); unless in cases where the action is against a mere wrong doer, and for an injury to the actual possession of the cestui que trust (p). Many of the rules and instances which have been stated in respect to the person to be made the plaintiff in actions in form ex contractu, here also govern and are applicable (q). to sue, &c For inju ries to the person. Actions in form ex delicto are for injuries to the absolute or relative rights of persons or to personal or real property. The action for an injury to the absolute rights of persons, as for assaults, batteries, wounding, injuries to the health, liberty, and reputation, can only be brought in the name of the party immediately injured, and if he die, the remedy determines. With respect to injuries to the relative rights of persons, the instances in which a husband may sue alone, or should join his wife in an action for injuries to the person of his wife, will be hereafter noticed (r). In the case of master and servant, the master may sue alone for the battery of (136), or for debauching his servant, although they are not related, when there is evidence to prove a consequent loss of service (s); and a father may sue for the seduction of his daughter, although she was married, provided some loss of [*70] service can be *proved (t). But if there be no evidence of such loss, an action cannot be supported in the name of the master (u). A parent cannot, it should seem, sue in that character, even for taking away his child, unless it be his son and heir, or unless a loss of service be sustained (x); clearly he cannot support an action for debauching his daughter, or beating his child, unless there be evidence to support the allegation per quod servitium amisit (y) (137). 10 Co. 330. (x) Cro. Eliz. 55, 770; 3 Bla. Com. 141. Per Holroyd, J., 4 B. & C. 662; 7 D. & R. 138, S. C. (y) 5 East, 45. See Holt, C. N. P. 453. Very slight evidence of service is sufficient, 2 T. R. 168; 5 T. R. 360; Peake, C. N. P. 55, 233; Sir T. Raym. 259. A. with intent to seduce B.'s servant, hires her as his servant, and then seduces her. B. may sue A. for the seduction, 2 Stark. Rep. 493. Rep. 254. See also, for the doctrine in Pennsylvania, Schuylkill Nav. Co. v. Thoburn, 7 Serg. & Rawle, 411 } And his wife may support a writ of dower to be endowed of the equity of redemption. Hitchcock and wife . Harrington, 6 Johns. Rep. 235. Collins v. Torry, 7 Johns. Rep. 278. {Tabele v. Tabele, 1 Johns. Cha. Rep. 45. So also in Massachusetts, Snow v. Stevens, 15 Mass. Rep. 279.} And although the mortgage is a sufficient title to enable the mortgagee to recover in ejectment, Jackson d. Ferris v. Fuller, 4 Johns. Rep. 215. {Lessee of Simpson v. Ammons, 1 Binn. 175 yet the mortgagor may maintain trespass against the mortgagee, and to a plea of liberum tenementum by the latter may reply that the freeho d was in himself. Runyan v. Mersereau, 11 Johns. Rep. 534. (135) It is otherwise in Pennsylvania, there being no courts of equity in that state. Kennedy Fury, 1 Dall. 72. Lessee of Simpson v. Ammons, 1 Binn. 177. } (136) This was law at the time of Bracton. 7 Reeve's Hist. E. L. 45. (137) Contra Martin v. Payne, 9 Johns. Rep. 387. {Hornketh v. Barr, 8 Serg. & Rawle, 36. Vanhorn Freeman, I Halst. Rep. 322. where it was held that the right of the parent to the services of his daughter, under the age of twenty-one, was sufficient to maintain the action without proof of an actual service. But where the daughter is above that age, she must be in her father's service, so as to constitute in law and in fact, the relation of master and servant, in order to entitle her father to a suit for seducing her. Nickleson v. Stryker, 10 Johns. Rep. 115. {Mercer v. Walmesley, 5 Har. & Johns. 27. 6 Serg. & Rawle, 177, acc. In Pennsylvania an action cannot be maintained by a mother for debauching her daughter, per quod servitum amisit where the seduction was during the life of the father, with whom the daughter resided at the time; although after the father's death TIFFS. And if, from its extreme youth, no services could be rendered by the child, the 1. PLAINparent cannot sue for a personal injury inflicted upon the child; the father not having necessarily incurred any expense upon the occasion (z). In cases of 1. Who the battery of the wife or servant, if there be any evidence sufficient to sup- to sue, &c. port an action in the name of the husband or master, it is frequently most advisable to proceed accordingly, because in such action, if the plaintiff recover less than 40s. damages, he will be entitled to full costs (a). The wife, the child, and the servant, having no legal interest in the person or property of the husband, the parent, or master, cannot support an action for any injury to them (b) (138). In treating of the action of trover, it is proposed to consider the nature and extent of the property in or right to personal property, necessary to support an action against a wrong doer, but it may be expedient to notice in this place some of the general rules upon the subject. The absolute or general owner of personal property, having also the right of For immediate possession, may in general support an action for any injury thereto, ries to peralthough he never had the actual possession (c) (139). sonalty. An action for an injury to personalty may also be brought in the name of the person having only a special property or interest of a limited or temporary nature therein (d). But in *this case the general rule seems to be, that the party should have had the actual possession (e). There are cases in which a party having the bare possession of goods, which is prima facie evidence of property, may sue a mere wrong doer who takes or injures them, although it should appear that the plaintiff has not the strict legal title (140); there being no claim by the real owner, and the defendant having no right or authority from him (ƒ). Although in the above instances the action may be brought by the general or spécial owner of goods, against a stranger (141), yet a judgment obtained (z) 4 B. & C. 660; 7 D. & R. 133, S. C. (a) 3 Wils. 319; 1 Salk. 206; 2 Ld. Raym. 831. (b) 3 Bla. Com. 143; 1 Salk. 119. (c) 2 Saund. 47 a., note I. (d) 2 Saund. 47 b, c, d. (e) B. & P. 47; 2 Saund. 47 J. she remained with the mother, who was at the expense of her lying-in, and who supported her and her child, Logan v. Murray, 6 Serg. & Rawle, 175. Aliter in New Jersey, Coon v. Moffet, 2 Penn. Rep. 583. } The slightest acts of service are sufficient. Moran v. Dawes, 4 Cowen, 412. Thus, where a bound apprentice was seduced; the indentures being subsequently cancelled when she returned and was delivered at her widowed mother's house. Sargent . — -, 5 ib. 106. A female under age is presumed to be so under the con rol of the parent as to entitle the latter to maintain the action. Thompson v. Millar, 1 Wend. R. 447. Although the daughter be a servant de facto of another, and the father has relinquished all claim to her services, still the latter may maintain the action, he being liable for the expenses of her lying in. Clark v. Fitch, 2 ib. But if the daughter be twenty-one years of age, it is different. In such case, there must be actual service. Stewart v. Kip, I ib. 376. (138) Vide 2 Reeve's Hist. E. L. 15, 46. (139) Vide Thorp v. Burling, 11 Johns. Rep. 285. Smith v. Plomer and another, 15 East's Rep. 607. Bird v. Clarke, 3 Day, 272. Williams . Lewis, ibid. 498. (140) So, possession of a ship under a transfer, void for non-compliance with the register acts, is a sufficient title against a stranger. Sutton v. Buck, 3 Taunt. 302. An officer who has seized goods under an execution may bring trespass or trover against a stranger for taking them away. Barker and Knapp v. Miller, 6 Johns. Rep. 195. Gibbs . Chase, 10 Mass. Rep. 125. 7 Cow. Rep. 297 Taylor . Manderson, 1 Ashm. Rep. 130; but a mere servant, having only the custody of goods, and not responsible over, cannot in general sue. Dillenback v. Jerome, 7 Cow. Rep. 294. See Ludden v. Leavitt, 9 Mass. Rep. 104. (141) Vide Putnam v. Wylie, 8 Johns. Rep. 432. 7 Conn. Rep. 235. [*71] 1. PLAIN by one in an action against a stranger for a conversion, is a bar to an action TIFFS. 1. Who to sue, &c. For inju by the other (g). When the general owner has not the right of immediate possession, as where he has demised the goods, or let them to hire for a term unexpired, he cannot maintain trespass or trover, which are forms of action founded on possession, even against a stranger (h); although if the injury were sufficient to affect his reversionary interest, he may support a special action on the case to recover damages to the extent of the injury he has sustained (i); and a recovery in an action by a party having the possessory title for the damage he has sustained, would be no bar to an action for an injury to the reversionary interest (k). The person in possession of real property corporeal, whether lawfully or ries to real not, may sue for an injury committed by a stranger, or by any person who property. cannot establish a better title (l) (142); and in trespass to land, the person actually in possession, though he be only a cestui que trust, should be the plaintiff, and not the trustee. But the rule is otherwise in ejectment, which is an action to try the right; and the fictitious demise must be in the name of the party legally entitled to the possession, although the beneficial interest may be in another (m) (143), and according to the strict nature of the right; thus tenants in common cannot join, but must sever, in separate demises in a declaration in ejectment (n). Nor should tenants in common join in debt for double rent (o). The party, however, must be in the actual possession, or he must [*72] have the general property, *in respect of which possession immediately follows, (as in the instance of the possession of his mere servant) (p), or he cannot maintain an action of trespass; a mere right to enter is not sufficient (q)(144). In the case of real property, there is not that constructive possession which may exist in the case of personalty, and the party entitled to possession cannot maintain trespass, unless he has had actual possession by himself or his servant, though he have the freehold in law (r); and after a feoffment with livery (g) 2 Saund. 47 e.; 1 Bulst. 68; 2 Vin. Ab. 49, pl. 6. (h) 7 T. R. 9; 3 Campb. 417; 1 R. & M. 99; 1 Price, 53; post. See an illustrative case, Bloxam v. Sanders, 4 Bar. & Cres. 941; 7 D. & R. 396, S. C. (i) 7 T. R. 9; 3 Lev. 209; 1 Taunt. 190, 191. (k) 3 Lev. 209; 1 Taunt. 190, 191, 194; 2 Cruise, 458. (1) East, 244; Willes, 221; 3 Burr. (n) Doe v. Errington, 3 Nev. & Man. 616. (9) 5 B. & Ald. 600; 1 D. & R. 225, S. cannot maintain an action against the commissioners of a harbor, for breaking down a dam erected by the former as such commissioners, across a navigable river, as the authority to be exercised by them on behalf of the public does not vest in them such a property or possessory interest as will enable them to maintain such action. 3 Moore, 666. But the contractors for making a navigable canal having, with the permission of the owner of the soil, erected a dam of earth and wood upon his close across a stream there, for the purpose of completing their work, have a possession sufficient to entitle them to maintain trespass against a wrong doer. 5 B. & Ald. 600; 1 D. & R. 225, S. Č. See other cases in Burn, J. tit. Poor, as to the ratability of mines, &c. (r) Com. Dig. Trespass, B. 3. (142) A guardian in socage may maintain trespass for an injury to the land of the ward. Byrne and wife v. Van Hoesen, 5 Johns. Rep. 66. But a person occupying land merely as a servant of the owner, and not as a tenant, cannot maintain an action. Bertie v. Beaumont, 16 East's Rep. 33. (143) See ante, p. 69. (144) See, however, Bulkley v. Dolybears, 7 Conn. Rep. 232. |