jointly to recover damages for a malicious prosecution; the action cannot be maintained.1

§ 232. VII. Actions in special cases. Some special cases which do not fall within the foregoing classification will conclude this branch of the discussion. A policy of fire insurance, containing the clause, "loss if any payable to E. B. G., mortgagee," the assured, it was held, could not maintain an action without making E. B. G. a coplaintiff, unless it was alleged and proved that the mortgage to him had been paid off so that his interest had ended.2 In several of the States, by virtue of special provisions contained in their codes, partnerships may sue and be sued by the use of the firm name as the parties plaintiff or defendant, in the same manner as though they were corporations. The judgments recovered in such actions against the partnership can only be enforced, in the first instance, against the firm property, and can only be extended so as to bind the individual property of the several partners by a subsequent direct proceeding against them, or some of them, in the nature of a scire facias. The Kentucky code contains a peculiar provision in reference to actions brought by an assignee of a thing in action where the assignment is equitable merely - that is, where it is not expressly authorized by statute; in such a case the assignor must be joined as a party either plaintiff or defendant, at the option of the assignee who brings the suit. The code of the same State expressly

1 Rhoads v. Booth, 14 Iowa, 575. Three plaintiffs sued jointly for a malicious prosecution. Wright J. said : As a rule, it is only when two or more persons are entitled to, or have a joint interest in, the property affected, or to the damages to be recovered, that they can unite in an action. Therefore, several parties cannot sue jointly for injuries to the person, as for slander, or battery, or false imprisonment. For words spoken of parties in their joint trade, or for slander of title, they may sue jointly; but not so when two or more sue for slanderous words which, though spoken of all, apply to them all separately; or in a case of false imprisonment or a malicious prosecution, when each, as individuals, are imprisoned or prosecuted. The principle underlying is, that it is not the act, but the consequences which are looked at. Thus, if two persons are injured by the

same stroke, the act is one, but it is the consequences of that act, and not the act itself, which is redressed, and therefore the injury is several. There cannot be a joint action, because one does not share in the suffering of the other." The court further held that the objection might be taken at the trial.

2 Ennis v. Harmony Fire Ins. Co., 3 Bosw. 516.

3 See supra, § 121. Ryerson v. Hendrie, 22 Iowa, 480.

4 Dean v. English, 18 B. Mon. 135. This provision is somewhat different from that found in the code of Indiana, which requires the assignor, in all cases where the thing in action is not assigned by indorsement, that is, where it is not a negotiable instrument, - to be joined as a defendant, in order to answer to the assignment. Indiana code, § 6.

authorizes the owner of land to maintain appropriate actions to recover damages for any trespasses or other injuries committed thereon, although he may not be in the actual possession, or have the right to the immediate possession, at the time when the trespass or other injury complained of was committed.1 This is undoubtedly the true interpretation of the codes of all the States without any express provision to that effect. The commonlaw distinction between "trespass" and "case" being abolished, the owner is entitled to maintain an action and recover damages, by alleging the actual facts which constitute the cause of action, although under the former procedure he would, under certain circumstances, sue in "trespass," and under other circumstances in "case." The nature of the right of action has not been changed, nor has the amount of damages recoverable been affected, but the special and technical rules which governed the use of the two common-law actions mentioned, have certainly been abrogated. A legatee or distributee of an estate in the hands of an executor or administrator may, under certain circumstances, maintain an action to recover a debt or demand due to the deceased, if for any reason the personal representative is legally disabled from suing. Thus, for example, where B. in his lifetime was indebted to A., both die, and the same person is made administrator or executor of each estate, a legatee or distributee of A.'s estate may bring an action in his own name against the one who is thus the administrator of B.'s estate, as well as executor or administrator of A.'s estate. This person, as the representative of one estate, cannot sue himself as representative of the other, and therefore the beneficiaries of the creditor

1 Bebee v. Hutchinson, 17 B. Mon. mon-law "case," that is, damages for 496. the injury to the inheritance. To nonsuit the plaintiff, is to restore the old distinctions between these technical actions. This doctrine is expressly sustained by the Supreme Court of Missouri; Fitch v. Gosser, 54 Mo. 267; and by a very recent decision in New York, Adams v. Farr, 5 N. Y. Sup. Ct. 59; citing Robinson v. Wheeler, 25 N. Y. 252; S. P. Foster v. Elliott, 33 Iowa, 216, 224. But see Townsend v. Bissell, 5 N. Y. Sup. Ct. 583, per Gilbert J., a contrary dictum, which, in the face of these authorities, and of the code itself, is clearly a mistake.

2 Brown v. Bridges, 31 Iowa, 138, 145. A plaintiff suing, as owner of land, for injuries done by a wrong-doer, cannot, consistently with the plain import of the codes, be nonsuited, because he was out of possession, and not entitled to possession. Undoubtedly, he may not be able to reCover such damages as he would have recovered if the action was the commonlaw "trespass," - that is, damages for the wrong done to his possession as well as to the inheritance; but he is certainly entitled to recover such damages as he would have obtained if the action was the com

estate are permitted to prosecute the action. It seems, also, that such action can be brought either by one of the legatees or distributees, or by all of them jointly.1

§ 233. It is held in New York that a mother may maintain an action for the seduction of her infant daughter where the father is dead, and the daughter is dependent upon the mother, although the latter has remarried.2 This rule has also been extended to the case when the father is not dead, but has abandoned his wife, who lives separate and apart from him, and maintains herself and family by carrying on a business in which the daughter is actually employed as an assistant, rendering substantial services. The action being founded upon the relation of master and servant, and not upon that of parent and child, and the mother carrying on a business in which the daughter is employed as a servant, all the requisites of the general doctrine relating to the action of seduction are fully complied with. These decisions are based upon common-law principles independently of any changes made by statute. The codes of several States, however, contain special provisions authorizing actions to be brought by fathers, or, in case of their death or desertion of their families, by mothers, and by guardians, to recover damages for the seduction of, or for the death of or injuries to, their children or wards. A woman is permitted, in a few States, to maintain an action and recover damages for her own seduction.5

1 Fisher v. Hubbell, 65 Barb. 74; s. c. 1 N. Y. Sup. Ct. 97. It was also held that Hubbell the common trustee - should be made a defendant, both as administrator of A.'s estate, and as executor of B.'s estate; of the latter, because he thus represented the debtor; and of the former, because he was the regular plaintiff, and should be made a party in order to conclude the estate by the judgment. It was said that, in order to bind the estate of a deceased person, his administrator or executor must be made a party in his representative capacity; it is not sufficient that he be made a party. See Haynes v. Harris, 33 Iowa, 516. In Missouri, the distributees of an estate in the hands of an administrator may, before an order for distribution is made, all unite in a joint action on the administrator's bond against him and his sureties. Whether such joint action would be proper after the order for

a distribution, quære. Kelley v. Thornton, 56 Mo. 325. In Kentucky it has been expressly decided that several distributees cannot unite in a legal action against the administrator to recover the shares found due to each upon a settlement of the estate. Pelly v. Bowyer, 7 Bush, 513.

2 Lampman v. Hammond, 3 N. Y. Sup. Ct. 293; Gray r. Durland, 50 Barb. 100, 51 N. Y. 424; Furman v. Van Sise, 56 N. Y. 435; Badgley v. Decker, 44 Barb. 577.

Badgley v. Decker, 44 Barb. 577. * See supra, § 120, where the States are enumerated. A statute which dispenses "with any allegation or proof of loss of service" does not change the rules of the law as to the parties; the seduced woman cannot bring the action. Woodward ». Anderson, 9 Bush, 624. 5 See supra, § 120.

§ 234. Second: Actions by and between Husband and Wife. The common-law rules as to the power of a wife to bring actions in her own name, and as to the necessity of making husband and wife coplaintiffs in all actions where she could be a party at all, relating to her property or to wrongs suffered by her, have been either utterly swept away or greatly modified in all the States which have adopted the reformed system of procedure. These common-law requisites were concisely stated in a former paragraph of this section. In equity, while, as a general rule, the husband was joined as a coplaintiff even in suits touching her equitable separate estate, yet, when their interests were at all antagonistic, and especially when the proceeding was in any manner adverse to him, she was permitted to sue without uniting him with her, and even to make him a defendant. Her action, however, was prosecuted in her name by a next friend.2

§ 235. The statutory legislation upon this subject entirely abandons the common-law theory, and, so far as it resembles any previous doctrine, rather adopts that of the equity tribunals, although in most instances it is far in advance of the greatest liberality ever allowed by the courts of chancery. In New York there is now no instance in which a husband and wife must, or even may, be joined as coplaintiffs, by virtue merely of the marriage relation, in actions affecting either his or her individual rights. If, however, the husband and wife are both in any manner interested in the subject-matter of the controversy, they may be united as plaintiffs; but this would result from the existence and nature of the common interest, and not from the marital relation. Special statutes, in reference to married women and their property, provide that a wife must sue alone, and without a guardian or next friend, in all actions relating to her separate property, which includes all the estate, real and personal, which she owns at the time of the marriage, and all that she may acquire subsequently thereto, and all of her personal earnings, and the proceeds of her business; in all actions upon contracts made by and with her in reference to her property, or in the course of any business which she may carry on; and in all actions brought to recover damages for any injuries to her person or character;

1 See supra, § 191.

2

Story, Eq. Pl., §§ 61, 63; 1 Daniell's Chan. Pl. (4th Am. ed.), pp. 109, 110.

and in all actions against her husband. It thus appears that in no case is it proper for a husband to be united as coplaintiff with his wife, in New York, merely because they are husband and wife.

§ 236. There are two general types or forms of the statutory provision, as contained in most of the codes, while in a few of the States the legislation is special, as it is in New York. The first of these forms is the following: "When a married woman is a party, her husband must be joined with her, except that, (1) When the action concerns her separate property, she may sue alone; (2) When the action is between herself and her husband, she may sue and be sued alone; but in no case shall she be required to sue or defend by guardian or next friend [except she be under the age of twenty-one years - Indiana]"2 The other form differs from this in requiring the interposition of a next friend. “When a married woman is a party, her husband must be joined with her; except when the action concerns her separate property, she may sue alone, without her husband, by a next friend. When the action is between herself and her husband, she may sue or be sued alone; but in every such action, other than for a divorce or alimony, she shall prosecute and defend by her next friend." In Iowa, the change is more radical, and reaches the same result as the New York statutes. "A married woman may, in all cases, sue and be sued, without joining her husband with her, to the same extent as if she were unmarried; and an attachment or judgment in such action shall be enforced by or against her as if she were a single woman."4 Also, "Should either the husband or wife obtain possession or control of property belonging to the other, either before or after marriage,

1 Laws of N. Y., 1860, ch. 90, § 7; Laws of 1862, ch. 174, §§ 3, 5, 7. The 114th section of the New York code remains unrepealed, although these later statutes have entirely abrogated or modified most of its provisions.

2 This form is found in Indiana code, § 8; Minnesota code, § 29; California code, § 370; Wisconsin code, ch. 122, § 15; South Carolina, § 137; Oregon, § 30; Nevada, §7; Dacotah, § 67; Florida, § 65; North Carolina, § 56; Idaho, §7; Wyoming. § 35; Montana, § 7. The provision in California is slightly mod

ified, but is substantially the same. In the first subdivision the following is inserted after the words " separate property," viz., "or her right or claim to the homestead property." A third subdivision is added, as follows: "(3) When she is living separate and apart from her husband, she may sue or be sued alone." The last clause, relating to a guardian or next friend, is omitted; otherwise the provision is identical with that given in the text.

3 Ohio code, § 28; Nebraska code, § 33. 4 Iowa code, 1873, § 2562.