dered by the child, the parent cannot sue for a personal injury inflicted upon the child; the father not having necessarily incurred any expense upon the occasion (z). In case of the battery of the wife or servant, there be any evidence sufficient to support 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 an injury to them (b) (1).

I.

PLAINTIFFS.

1. Who to

sue, &c.

In treating of the action of trover, it is not proposed to consider the For injuries nature and extent of the property in or right to personal property, necessa- to person alty. ry 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 immediate possession, may in general support an action for any injury thereto, although he never had the actual possession (c) (2).

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 (3); there being no claim *by the real owner, and the { *C2 ] defendant having no right or authority from him (ƒ).

(z) 4 B. & C. 660; 7 D. & R. 133, S. C. (a) 3 Wils. 319; 1 Salk. 216; 2 Ld. Raym. 831.

(b) 3 Bla. Com. 143; 1 Salk. 119.

(c) 2 Saund. 47 a, note 1.
(d) 2 Saund. 47 b, c, d.
(e) 1 B. & P. 47 d.
(f) 2 Saund. 47 c. d.

whom the daughter resided at the time; although after the father's death 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. & R. 175; aliter in New Jersey, Coon v. Moffit, 2 Penn. 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. Sergeant v., 5 ib. 106. A female under age is presumed to be so under the control of the parent as to entitle the latter to maintain the action. Thompson v. Millar, 1 Wend. 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, 1 ib. 376. And a party in loco parentis may maintain an action on the case per quod servitium amisit for an abduction of his daughter's illegitimate offspring. Moritz v. Garnhart, 7 Watts, 302.

(1) Vide 2 Reeve's Hist. E. L. 46, 45.

(2) Vide Thorp v. Burling, 11 John. 285; Smith v. Plomer, 15 East, 607; Bird v. Clark, 3 Day, 272; Williams v. Lewis, ibid. 498; Cary v. Hotailing, 1 Hill, 311. An action for injury to personal property is rightly brought in the name of the owner at the time of the injury, although it is sold at the time of the action brought, or although it was in the possession of his actor who had a lien therein. Holly v. Huggford, 8 Pick. 73; Boynton v. Willard, 10 Pick. 166.

(3) So, possession of a ship under a transfer void for non-compliance with the registry acts, is a sufficient title against a stranger. Sutten 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 John. 195; Gibbs v. Chase, 10 Mass. 125; 7 Cowen, 297; Taylor v. Manderson, 1 Ashm. 130; but a mere servant, having only the custody of goods, and only responsible over, cannot in general sue. Dillenback v. Jerome, 7 Cowen, 294; See Ludden v. Leavitt, 9 Mass. 104.

I

PLAINTIFFS.

1 Who to

sue, &c.

For injuries to real property.

Although in the above instances the action may be brought by the general or special owner of goods, against a stranger (1), yet a judgment obtained by one in an action against a stranger for a conversion, is a bar to an action 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 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 not, may sue for an injury committed by a stranger, or by any person who cannot establish a better title (1) (2); 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) (3), 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 have the general property, in respect of which possession immediately follows, (as in the instance of the possesion of his mere servant) (p), or he cannot maintain an action of trespass; a mere right to enter is not sufficient (7) (4). In the case of rea

(g) 2 Saund. 47 c.; 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.

(7) 1 East, 244; Willes, 221; 3 Burr. 1563; 2 Stra. 123; Cro. Car. 586; Peake, 67; 1 Taunt. 83, 190, 191, 194; 8 East, 394; 5 B. & Ald. 600; 1 D. & R. 225, S. C.

(0) Wilkinson v. Hall, 1 Bing. N. C. 713. (p) 6 B. & C. 703.

(q) 5 B. & Ald. 600; 1 D. & R. 225, S. C.; 2 Moore, 666. Commissioners of sewers cannot maintain an action against the com missioners of a harbor, for breaking down a dam erected by the former as such commis sioners, across a navigable river, as the au thority to be exercised by them on behalf of the public does not vest in them such a property or possessing 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

(1) Vide Putnam v. Wylie, 8 John. 432; 7 Conn. 235.

(2) A guardian in socage may maintain trespass for an injury to the land of the ward. Byrne v. Van Hoesen, 5 John. 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, 33. (3) See ante, p. 60.

(4) See, however, Bulkley v. Dollybeare, 7 Conn. 232. The owner of a brick yard, who has authorized a third person to enter and make bricks at will, may still maintain an action for an injury to the possession merely. Shaw v. Cummiskey, 7 Pick. 76.

II.

PLAINTIFFS.

1. Who to

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, sue, &c. though he have the freehold in law (r) and after a feoffment with livery of seisin, the feoffee may maintain trespass, notwithstanding a tenant at will was in possession at the time of such feoffment, and did not assent to the same (s). These rules will be more fully considered in the next chapter, when considering the cases in which an action of trespass is sustainable (). A person having the immediate reversion or remainder in fee or in tail, or for a less estate, may support an action on the case for waste (1), or any nuisance of a permanent nature, or which affects, litigates, and injures the rights, and which is injurious to his reversionary interest (u); but he cannot sue in trespass when the possession is lawfully in his tenant or other person (x) (2).—The tenant may support trespass against a stranger for an injury to his possession; and the immediate reversioner may, at the same time, support an action on the case, if the injury were sufficient to prejudice his right and interest; and a recovery by one will be no bar to an action by the other (y). But the reversioner, when he sues, must allege and prove such a permanent injury as necessarily affects his interest (z). When trees are excepted in a lease, the lessee has no interest therein, and cannot sue even a stranger for cutting them down, though he might for the trespass to the land; and in such case the lessor may support trespass against the lessee or a stranger, if he either fell or damage them; but if there be no exception of the trees in the lease, the lessee has a particular interest therein, and may support trespass against the lessor or a stranger for an injury to them during the term; but the interest in the body of the trees remains in the lessor as part of his inheritance, and he may support an action on the case against a lessee or a stranger for an in

191, 194, 1 M. & Sel. 234; Ancient Lights,
4 Burr. 2141; 3 C. & P. 617. The remedy
for waste is fully considered under the head
of Case, post.

(x) Id. ibid.; 1 Taunt. 190; 7 T. R. 9.

(y) 4 Burr. 2141; 3 Lev. 209, 359, 360; Com. Dig. Action, Case, Nuisance, B.; 1 Taunt. 183, 190, 191, 194. As to remedy by reversioner, also by tenant, on 9 Geo. 1, c. 22, against the hundred in case of a malicious fire, 9 B. & C. 131, 142; 1 Man. & Ry. 130, S. C.

(z) 1 M. & Sel. 234; 1 Taunt. 202.

(1) Vide Provost and Scholars of Queen's College v. Hallet, 14 East, 489; Attersol v. Stevens, 1 Taunt. 190, 194, 195, 202, 203, ante, 33, n. 1.

(2) Vide Campbell v. Arnold, 1 John. 511. So, the lessor cannot maintain trespass against the sub-tenant at will of his lessee. Toby v. Webster, 3 Johns. 468. At common law an action

of waste could not be maintained against a tenant for life, except by him who had the immediate estate of inheritance expectant on the determination of the estate for life; but a statute of the state of New-York gives an action of waste for trespass to any person seised in remainder or reversion, for an injury to the inheritance, notwithstanding any intervening estate for life or for years. Ses. 36, c. 56, s. 33; 1 R. L. 527; 1 Rev. Stat. 750, s. 8. As to the construction of this section of the act for the amendment of the law, Vide Livingston v. Haywood, 11 John. 429; Wickham v. Freeman, 12 Johns. 183. A reversioner cannot maintain trespass for an injury to the inheritance, committed by a person who acts under the authority or by the permission of the tenant for life; such person not being a stranger within the meaning of the statute authorizing actions by reversioners. Livingston v. Mott, 2 Wend. 605.

I. PLAINTIFFS.

1. Who to sue, &c.

[ *84 ]

21ly. Who to join or sever with

reference to

jury thereto, or even trover, if they be cut down and carried away (a) (1). But to sustain a count for an injury to an alleged reversionary interest subject to a demise, the written lease or agreement must be proved (b). After a recovery in an action of ejectment, trespass for mensne profits may be brought in the name of lessor of plaintiff or of the nominal plaintiff (c), and after an escape in the latter action, the sheriff may be sued for it in the name of the nominal plaintiff (d).

Many of these rules prevail also in the case of an injury to real property incorporeal, and if there be any injury to such right, an action may be supported, however small the damage; and therefore a commoner may maintain an action on the case for an injury done to the common, though his proportion of the damage be found to amount only to a farthing (e).

When two or more persons are jointly entitled or have a joint legal interest in the property affected, they must in general join in the action, or the defendant may plead in abatement (ƒ) (2); and though the interthe number est be several, yet if the wrong complained of caused an entire joint of plaintiffs. damage, the parties may join or sever in the action (3); but as the Courts will not in one suit take cognizance of distinct and separate claims of different persons where the damage as well as the interest is several, each party injured must, in that case, sue separately (g). If a third person collude with one partner in a firm to injure the other partners, the latter may separately maintain an action on the case against the third person so colluding (h).

Therefore, several parties cannot in general, sue jointly for injuries to the person as for slander, battery, or false imprisonment of both, and each must bring a separate action (i) (4). In these cases the wrong done to one person cannot in law be to the prejudice of the other; nor is there any criterion by which an entire sum can be awarded to them for damages. But partners in trade may join in an action for slanderous words

(a) 1 Saund. 322, note; 7 T. R. 13; Com.
Dig. Biens; 1 Taunt. 190, 191, 194; 2 M. &
Sel. 498. 499; ante, 62.

(b) Cotterill v. Hobby, 4 Bar. & Cres. 465.
(c) 2 M. & Sel. 423; Adams on Eject. 333.
See 5 M. & Sel. 64; Chitty 410. See post,
as to the action for mesne profits.
(d) 2 M. & Sel. 473.

(1) See Bulkley v. Dollybeare, 7 Conn. 232.

(2) Where two or more are deceived and injured in the purchase of real estate for partnership purposes, by false and fraudulent affirmations of a third person, which are actionable, they may join in an action against him to recover damages for the deceit and injury. Medbury v. Watson, 6 Metcalf, 246. If a bill of sale of goods be made to one, who purchases for himself and a dormant partner, both may join in an action of trespass for taking away the goods. Robinson v. Mansfield, 13 Pick. 189; Russell v. Stocking, 8 Conn. 237; Sweigart v. Berk, 8 Serg. & R. 308; Glover v. Austin, 6 Pick. 209; Silmore v. Wilbur, 12 Pick. 120. Two incorporated companies may unite in an action of assumpsit to recover a sum of money deposited in a bank in their joint names. The N. Y. and Sharon Canal Company v. The Fulton Bank, 7

Wend. 412.

(3) In an action of ejectment against one defendant for an entire lot of land, it was held that separate demises from several lessors, might be laid in the declaration, who might give in evidence their titles to distinct parts of the premises, in severalty, and recover accordingly. Jackson v. Sidney, 12 John. 185.

(4) But in favor of liberty the law permits two to join in suing the writ de homine replegiando. F. N. B. 66, F.

I.

PLAINTIFFS.

Who to jou

or sever, &c

spoken, or a libel published concerning them in the way of their joint business, without showing the proportion of their respective shares (k) (1). So joint-tenants or coparceners may join in an action for slander (1) (2) of their title to the estate (7). And husband and wife may sue jointly for a malicious prosecution and imprisonment of both, or the husband may sue alone (m). And two persons may jointly sue for a malicious arrest of both, in an action brought without reasonable cause, if it be laid as special damage that they jointly incurred an expense in procuring their liberation (n) (3). For in these instances there is an entirety of interest, or a joint damage resulting from the tort. Where an action was brought, and a verdict obtained by two plaintiffs against a defendant for a malicious arrest, and the declaration alleged as a special damage, not only a joint expense incurred, but also the false imprisonment of both; the Court or- [ *65 ] dered the judgment to be arrested, but as the verdict confined the damages to the joint expense incurred by the plaintiffs in obtaining their liberation, an amendment of the postea was allowed (o).

In actions for injuries to personal property joint-tenants and tenants in common must join, or the defendant may plead in abatement (p) (4) but parties having several and distinct interests, cannot in general join. Thus, if goods of A. and B., the separate property of each, be unlawfully distrained, they cannot join in the replevin (q); and an audita querela in the joint names of the conusors of a statute staple, for levying several executions on their lands respectively, cannot be supported (r); nor could persons robbed on the highway join in action against the hundred, unless they were jointly interested in the property (s).

But though the interests of the parties be distinct, yet if the injury occasion an entire joint damage to them, they may in some cases join (t); as where two persons were severally seised of two ancient mills, at one or the other of which the defendant ought to have ground his corn, but neg

(1) So an action lies for co-partners in trade against two or more, also co-partners, for falsely and fraudulently recommending an insolvent person as worthy of credit, whereby the plaintiffs were induced to trust him with goods. Patten v. Gurney, 17 Mass. 182.

(2) Two purchasers of an estate cannot maintain a joint action for a false and fraudulent affirmation by the seller. Baker v. Jewell, 6 Mass. 460. Co-partners, however, may join in a suit against other co-partners for falsely and fraudulently recommending an insolvent person as worthy of credit, whereby the plaintiffs incurred a loss by trusting him with goods. Patten v. Gurney, 17 Mass. 182.

(3) See post, 66, note.

(4) Vide Bradish v. Schenck, 8 Johns. 151; Pickering v. Pickering, 11 N. Hamp. 141; Smoot v. Watham, 8 Missou 522. Joint owners of goods must join in replevin to recover them, M'Arthur v. Lane, 15 Maine, 245; Ellis v. Culver, 2 Harr. 129. But several persons having separate and distinct interests in a chattel, were held not entitled to join in replevin, in Chambers v. Hunt, 3 Harr. 339.

But where the sheriff seized on execution and sold a chattel owned by the judgment debtor and another in common, and paid the whole proceeds over to the judgment creditor, it was holden, that although he might lawfully seize the whole, he should have sold but the share of the judgment debtor; and the abuse of his authority made him a trespasser ab initio, and he was liable to the other part owner of the chattel, in trover or trespass at his election. Melville v. Brown, 15 Mass. 82. Tenants in common must all join in an action of assumpsit for the avails of a tort that is waived. Gilmore v. Wilbur, 12 Pick. 120.