DEFENDANTS. 4, c. 42, s. 32, one of several defendants acquitted in an action on the II. case, or for a tort, may recover his costs (k); and this constitutes a very 2. Who to be important consideration in commencing an action; and although it might joined or be desirable to include a party as a defendant in order to exclude his evi- omitted. dence, yet unless it be certain that a verdict will be obtained against him, it will be imprudent to join him; because, if acquitted, he would probably recover his costs, and they may be set off or deducted from the damages and costs recovered by the plaintiff against another defendant or defendants, and may be nearly equal to, if not exceed, the sum payable to the plaintiff (7). And it is now the course, in an action on the case or trover against several persons, at the close of the plaintiff's case and evidence if there be no proof against one of the defendants, immediately to acquit him, so that he may thereupon instantly be enabled to give evidence for the remaining defendants (m). And as well before as since the 3 & 4 W. 4, c. 42, s. 32, it was and is considered improper to join all the parties present at the time of an irregular distress or other tort, with a view merely to exclude evidence (n); and the fair way is to bring the action against the landlord, or at most against the landlord and broker, and not to include the appraisers or the man in possession (o); and where a police-man joined as a defendant with others, obtained a verdict, it was held that he was absolutely entitled to costs under 10 Geo. 4, c. 44, independently of the enactment in 3 & 4 W. 4, c. 42, s. 32 (p). Where separate actions have been brought against several defendants for the same act of trespass committed by them concurrently, the party [ *89 ] against whom the last action was commenced may plead the pendency of the first in abatement (q) (1). A recovery against one of several parties who jointly committed a tort, precludes the plaintiff from proceeding against any other party not included in such action (r) (2). Thus in an action against one for a battery, or for taking away the plaintiff's posts, or destroying grass in a field where several persons are concerned, the (k) The 3 & 4 W. 4, c. 42, s. 32, enacts, that where several persons shall be made defendants in any personal action, and any one or more of them shall have a nolle prosequi entered as to him or them, or upon the trial of such action shall have a verdict pass for him or them, every such person shall have judgment for and recover his reasonable costs, unless in the case of a trial the judge before whom such cause shall be tried shall certify upon the record under his hand, that there was a reasonable cause for making such person a defendant in such action. (1) George v. Elston and others, 1 Bing. N. C. 513; 1 Hodges, 63; 3 Dowl. 419, S. C. Where in an action against three for an ir regular distress, plaintiff recovered damages (m) Child v. Chamberlain, 6 C. & P. 215; (n) Child v. Chamberlain, 6 C. & P. 213. (p) Humphrey v. Wodehouse, 1 Bing. N. C. 506. (9) 1 Campb. 60, 61. (r) Cro. Jac. 74; Com. Dig Action, K. 4, L.; 2 B. & P. 70, 71; 1 Taunt. 207 a; 4 Taunt. 88. (1) Contra Livingston v. Bishop, 1 John. 290. (2) Vide Warden v. Bailey, 4 Taunt. 87, 88, acc. Where LAWRENCE J., says, that two several actions could not be sustained against several for the same act of imprisonment. And see Campbell v. Phelps, 1 Pick. 290. But in Livingston v. Bishop, 1 John. 290, it was held that separate actions might be brought against several joint trespassers, in each of which the plaintiff might proceed to judgment, and then should elect de melioribus damnis, and issue his execution against one of the defendants, which was a determination of his election, and precluded him from proceeding against the others, except for the costs in their respective suits. It seems, if a plaintiff discharge the action against one tort feasor on receiving satisfaction, that it is a dis II. DEFENDANTS. 2. Who to omitted. recovery against one will be a bar to an action against the others (s), and where the plaintiff had previously recovered in an action against his be joined or servant for quitting his service, it was decided that he could not also support an action against the person for seducing away such servant (1). În these cases the Court will in general on a summary application stay the proceedings in the second action, where it is manifest that the entire damages have been recovered in the first (u). But where the evidence and the damages in the two actions might be different, as where two persons on different occasions have published the same libel, separate actions may be supported against each (x) (1). So the recovery against one party in an action for criminal conversation, is no bar to an action against another party for a similar injury (y). 3dly Where the interest has been as 3. As in the case of a breach of a covenant, so in that of torts, the assignee of the estate is not liable for an injury resulting from any signed, &c. nuisance, or wrongful act, committed thereon before he came to the estate; but if he continue the nuisance he may be sued for such continuance (z). In some cases it is necessary, and in all cases it is judicious, prior to the commencement of the action, to require the defendant to abate the nuisance (a). If a tenant for years erect a nuisance, and make an under-lease to B., an action lies against either (b); and if B. takes the goods of C., and B. take them from A., C. may have his action against A. or B. at his election (c). 4thly. In case of the death of the 4. At common law upon the death of the wrong-doer, the remedy for torts unconnected with contract in general determines; and as the statute wrong-doer. 4 Edw. 3, c. 7, (d) before referred to (e), does not give any remedy against personal representatives, we shall find that few actions in form ex delicto, and in which the plea would be not guilty, could, before the 3 & 4 W. 4, c. 42, s. 2, be supported against the executor or administrator of [90] the party who committed the injury (f) (2). Many of the preceding observations on the rule actio personalis moritur cum persona in its relation to the death of plaintiffs are equally applicable to the case of the death of the wrongdoer (g). charge of the others. Dufresne v. Hutchinson, 3 Taunt. 117. See Knox v. Work, 1 P. A. Browne, 101. (1) Where B. & C., printers in partnership, publish jointly a libel, and separate suits are brought against each, and a judgment is first obtained in the suit against C which is satisfied, that judgment and satisfaction may be pleaded in bar of suit against B. Thomas v. Rumsey, 6 John. 26. In this case the doctrine in Livingston v. Bishop, 1 John. 290, was confirmed, and applied to actions for libels. (2) Vide Franklin v. Low, 1 John. 396. In Virginia, trespass for the mesne profits of land recovered in ejectment against A. lies against his executor. The 64 sec. ch. 104, Rev. Code, of an extension of the 4th Edw. III. ch. 7, de bonis asportatis. Lee v. Cooke, Gilm. 331. II. DEFENDANTS For injuries to the person, if the wrong-doer die before judgment, the remedy determines, and there is no instance of an action having been supported for such injuries against his personal representatives (h) and cer- Death of tainly neither of the statutes afford any remedy. In general also no action in form ex delicto, as trover, (1), case (2) or trespass (3), could, before the 3 & 4 W. 4, c. 42, s. 2, be supported against an executor for an injury to personal property, committed by his testator (k) (4). If, however, the testator converted the property inte money, assumpsit was sustainable against his executor (5), or if the property came in specie to the possession of the latter, trover would be sustainable against him (6); but then he was not to be sued in the character of executor, but as for his own tortious conversion (1). It is said that an action is sustainable against an executor of a carrier for the loss of goods, but then the action should be framed in assumpsit (m). And an action of assumpsit might at common law be maintained against the executor of an attorney for unskilfulness or carelessness in the conduct of a cause, or other professional business in which the testator was employed, being the breach of an express or implied contract (n). We have seen that debt may be supported by an executor for an escape on final process, but it could not be maintained against the executor of a sheriff or gaoler; for though the action is not in form ex delicto, it was considered founded on a tort, namely, the negligence and breach of duty of the deceased sheriff or gaoler (o) (7), but where a sheriff had levied money under an execution, and died before he had paid (h) Cowp. 375; 1 Saund. 216 n; Com. Dig. Administration, B. 15; 2 M. & S. 408. (k) Cowp. 371; 1 Saund. 216 a; Com. Dig. Administration, B. 15. (1) Cowp. 371, 374; 1 Saund. 216 a. (m) 2 New Rep. 370. (n) 3 Stark. R. 154. (0) Ante, 68, 9; Dyer, 322 a; Lord Raym. 973; Com. Dig. Administration, B. 15; Vin. Ab. Executor, H. a. pl. 1, 7. 20. (1) Hench v. Metzer, 6 Serg. & R. 272; 15 Mass. 398; Barnard v. Harrington, 3 Mass. 288. The statute of Alabama, which declares that the action of trover shall survive for and against an executor or administrator, was intended to subject them to that form of action in their representative capacity, where a conversion had taken place in the life-time of the testator or intestate. Nations v. Hawkins, 11 Alabama, 859. (2) An action for breach of promise of marriage is within the rule. 13 Serg. & R. 183; Stebbins v. Palmer, 1 Pick. 71. So an action of slander, Long v. Hitchcock, 3 Ham. 274. Lattimore v. Simmons, (3) Nicholson v. Elton, 13 Serg. & R. 415; Harris v. Creashaw, 3 Rand. 14; Perry v. Wilson, 7 Mass. 395. (4) Sed vide Powell v. Layton, 2 B. & P. N. R. 370, where Mansfield C. J. seems to be of the opinion that case would lie against the executor of a carrier, the foundation of the action being essentially contract. Death of defendant abates an action of Replevin. Mellen v. Baldwin, 4 Mass. 480; Merritt v. Lambert, 8 Greenl. 128. So an action of debt, whether qui tam or otherwise. Benson v. Egerton, Brayt. 21; Smith v. Walker, 2 Car. Law. Repos. 245. See also Tompkins v. Walters, 6 Call, 44; Turner v. Booker, 2 Dana, 335; M'Allister v. Spiller, Cam. & Nor. 95. Many actions, or causes of action, are now made to survive by statutes in some of the states, which did not survive at common law. To these statutes the reader is referred. (5) See ante, 67, note (8). U. States v. Daniel, 6 Howard U. S 11. (6) See Allen v. Harlan, 6 Leigh, 42; Catlett v. Russell, ib. 344. (7) Vide Martin v. Bradley, 1 Caines, 124; Logan v. Barclay, 3 Alabama, 361; Cunningham v. Jaques, 4 Harr. 42. So an action will not lie against the executors of a sheriff for the default of his deputy in returning process, for the omission to return which an action is given by statute. The People v. Gibbs, 9 Wend. 29; Cravath v. Plympton, 13 Mass. 454. 4thly. wrong doer. II. DEFENDANTS. 4thly Death of it over, his executors might be sued either in debt or scire facias, upon his return fieri feci, or by action of assumpsit, as for money had and received (p). It was held that an action cannot be supported against an wrong-doer. executor for a penalty forfeited by the testator under a penal statute (q); and that debt is not sustainable against an executor for treble the value of tithes which his testator ought to have set out (). At common law no executor was answerable for a devastavit by his testator, on the principle that it is a personal tort, which dies with the person; but by the statute 30 Car. 2, c. 7, (explained and made perpetual by 4 & 5 W. & M. c. 24, s. 13,) "the executors or administrators of any executor or administrator, [ *91] whether rightful or of his own wrong, who shall waste or convert to his own use the estate of his testator or intestate, shall be liable and chargeable in the same manner as their testator or intestate would have been if they had been living" (1). So that since these statutes, if a judgment be obtained against an executor who afterwards dies, an action may be brought against his executor or administrator upon the judgment, suggesting a devastavit by the first executor (s). But it would seem that an executor de son tort of an executor de son tort cannot be declared against as such upon the statutes (1). For injuries to real property no action in form ex delicto could in general be supported against the personal representatives of the wrong-doer (u). If, however, trees, &c. were taken away and sold by the testator, assumpsit for money had and received lies against his executor (2); and the lati is personally liable in trover if the trees, &c. remain in specie, and the executor refuse to restore them (y) (2). A Court of Equity will frequently afford relief against the executor of the wrong-doer, though at law the action moritur cum persona (z); and, therefore, where a tenant for life cut down timber and died, relief was decreed against his executors in favor of the remainder-man (a). There is an exception to the common law rule in the case of the executors of a deceased rector or vicar, &c. against whom, upon the custom of the realm, the successor may support an (p) Cro. Car. 539; 2 Show. 79, 281; Gilb. (q) Com. Dig. Administration, B. 15. (t) Andr. 252, 254; 2 Vent. 360; see 10 (u) 7 T. R. 732; 1 Saund. 216, n. 1; 2 Saund. 252 a. n. 7. (x) 3 T. R. 549; Cowp. 373, 374. (y) Cowp. 373, 374; 7 T. R. 13; 1 Saund. 216 a. (z) 3 Atk. 757; 2 Ves. 560; 2 Vent. 360, Landsdown v. Landsdown, 1 Madd. 146; 5 Madd. 369. (a) 7 T. R. 732; Landsdown v. Landsdown, 1 Jac. & W. 522; Chit. Eq. Dig. Was te. (1) Vide Laws of N. Y. sess. 36, c. 75, s. 8; 1 R. L. 312; 2 Rev. Stat. 448, s. 1, 2. The English statute is in force in Pennsylvania, Roberts' Dig. 258; 3 Binn. 624 (2) In Cravath v. Plympton, 13 Mass. 454, the principle was stated to be, that where the deceased by a tortious act acquired the property of the plaintiff, as by cutting his trees and converting them to his own use, although trover does not lie, yet the plaintiff may recover the value of his trees in some other form of action; but where by the act complained of, the deceased acquired no gain, although the plaintiff may have suffered great loss, then the rule applies, actio personalis moritur cum persona. The case of Cutler and Hay v. Brown, 2 Hayw. 122; Crane v. Crane, 4 Halst. 173, do not establish a different doctrine, nor are they at all at variance with the other cases referred to. action on the case for waste and dilapidations permitted or committed by the deceased (b). II. DEFENDANTS 4thly In many cases of injury to personal or real property, in the event of the Death of death of the wrong-doer, it will be essential well to consider whether the wrong-doer. 3 & 4 W. 4, c. 42, s. 2, does not afford redress against his personal representative (c). 5thly. In The Bankrupt Act (d) does not contain any provision, enabling a person the case of injured by any personal tort, committed by the bankrupt before his bank- Bankruptruptcy; as an assault or battery (e), false imprisonment, slander (ƒ), cy. libel, seduction, criminal conversation, and the like; or by any trespass or wrong to real (g) or personal property (h) (1), of which the bankrupt may be guilty; to obtain remuneration from the funds of the bankrupt, which become vested in the assignees for the benefit of the creditors. As a party thus injured cannot prove the damages he has sustained against [ *92 ] the estate of the bankrupt, the only redress which is left to him is in an action against the bankrupt; and this remedy is not therefore affected by the certificate of the latter (i). There are many instances in which the law reserves to a party the election to sue upon a contract, or in tort, for some wrong having relation to a contract express or implied between the parties (k). It is evident that by selecting the latter form of proceeding, the advantage which the defendant might otherwise derive from his certificate may be obviated. Thus, if the plaintiff has an election to sue for money had and received, or in trover, he may maintain the latter, notwithstanding the bankruptcy of the debtor after the debt accrued (1). And bankruptcy and certificate are no bar to an action in tort against a broker for selling out stock contrary to orders (m). The same rules hold in the case of an insolvent as in the instance of a 6thly. In bankrupt with regard to a claim for damages for a tort committed by the solvency. insolvent. The Insolvent Act (n), as before observed (o), only discharges the party as against those who are creditors, and who are described as such in his schedule. He remains liable for torts; and the discharge has no operation even against a claim for mesne profits accruing before, if unliquidated at the time of, the discharge (p). And even where there has been prior to the petition, a judgment in an action for damages, the Court may remand the insolvent for a period not exceeding two years in the whole, at the suit of the plaintiff in such action, provided the damages were recovered for criminal conversation, seduction, breach of promise of marriage, malicious prosecution, libel or slander, or for any malicious injury, or "in any action of trespass or tort to the person or property of (1) See Bird v. Clark, 3 Day 272; Shoemaker v. Keely, 2 Dall. 213; Sommer v. Wilt, 4 Serg & R. 23; Kennedy v. Strong, 10 John. 289; Dusar v. Murgatroyd, 1 Wash. C. C. 13. |