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2. Who to

join or sever, &c.

lected to grind at either, it was decided that both might join (u); and op PLAINTIFFS the same principle it was holden, that the dippers at Tunbridge Wells might join in an action against a person who exercised the business of a dipper, not being duly appointed (x). And where goods are bailed to two, and only one has the possession in fact, and a stranger carries them away, both may have detinue or trespass, or the one who had actual possession may sue alone (y).

For inju

ries to real proporty.

In actions for injuries to real property, joint-tenants (2), and parceners (a)(1), must join real as well as personal actions, or the nonjoinder may be pleaded in abatement (2); and if one of several joint tenants die pending a real action, it will abate, as the survivor is entitled to a different estate; but it is otherwise in personal and mixed actions (b)(3). Tenants in common must in gencral sever in real actions, unless in a quare impedit, and in ejectment a joint demise would be improper (4); but in personal actions, as for a trespass or nuisance to their land, they may join (5) because in these actions, though these estates are several, yet the damages survive to all; and it would be unreasonable when the damage is thus entire to bring several actions for a single trespass (c)(6). A tenant in common [66] may "however in general sue separately; as in ejectment for his undivided share, or in trespass for the mesne profits, or in debt for double value against a person who has held over after the expiration of his tenancy (d). But a joint action for mesne profits may be supported by several

(u) 2 Saund. 115, 116.

(x) 2 Wils. 423; 2 Saund. 116, note 2.
(y) 2 Vin. Ab. 59; Com. Dig. Abatement,
E. 12.

(z) 2 Vin. Ab. 59; Bac. Ab. Joint-tenants,
K.; Moore, 466. But see 12 East, 61, 221.
See 7 Moore, 29.

(a) Vin. Ab. Parceners; Moore, 466; 12 East, 61, 221.

(b) Rep. Temp. Hardw. 398; Co. Lit. 188, 197.

(c) Bac. Ab. Joint-tenants, K.; 2 Bla. Rep. 1077; 5 T. R. 247; Yelv. 161; Cro. Jac. 221; 2 H. Bla. 386; 5 Mod. 151.

(d) 5 T. R. 248; 2 Bl. Rep. 1077. In some cases he may sue in ejectment for the whole premises, 3 Moore, 229.

In Brizendine v. Frankfort Bridge Co. 2 B. Monroe, 32, it was held, that one joint owner of a chattel may recover his proportion of the value thereof, although another part-owner may have recovered, or sued for and failed to recover the value of his interest, and judgment in bar be entered.

(1) Vide contra Doe v. Lonsdale, 12 East, 39, and in Connecticut, one, or any number of them may bring an action against a person who has no title. Bush v. Bradley, 4 Day, 298; Sanford v. Button, 4 Day, 310; Vide Litt. sec. 313. A person having an equitable title to land may be joined with one having the legal title, in an action to recover for damages done to a building erected thereon at the expense of both. Schuylkill Navigation Co. v. Farr, 4 Watts & Serg. 362.

(2) If four joint-tenants jointly demise from year to year, such of them as give notice to quit may recover their several shares in ejectment on their several demises. Doe d. Wayman v. Chaplin, 3 Taunt. 120.

(3) Vide Litt. sec. 311, 312, 313. Carter v. Carr. Gilm. 145; Drago v. Stead, 2 Rand. 454. (4) It has been held by the Supreme Court of the State of New-York, that tenants in common might declare on a joint demise. Jackson v. Bradt, 2 Caines, 169. The law is the same in Vermont. Hicks v. Rogers, 4 Cranch, 165. In Kentucky, several persons claiming distinct parcels of land under the same entry, may join against the holders of an adverse title. Smith v. Harrow, 1 Bibb. 97.

(5) In an action for a nuisance to land, all the co-tenants must join as plaintiffs. Low v. Mumford, 14 Johns. 426. So tenants in common may join in an action of waste. Greenly v. Hall, 3 Harrington. 9. Where five were seised of a mill as tenants in common, and the mill was burned through the negligence of some of them, it was held the other four might maintain an action on the case against him. Chelsey v. Thompson, 3 New Hamp. 1. See Daniels v. Daniels, 7 Mass. 135.

(6) Tenants in common should join in detinue of charters. Co. Lit. 197 b. post. And in case for the destruction of their charters or title deeds. Daniels v. Daniels, 7 Mass. 135. Vide Litt. sec. 315, 316. Bradish v. Schenck, 8 Johns. 151. That tenants in common must join in trespass quare clausum fregit, see Austin and others v. Hall, 18 Johns,

1

lessors of the plaintiff in ejectment after recovery therein, although there I. were only separate demises by each (e).

FLAINTIFFS.

sever, &o.

er.

In actions in form ex delicto and which are not for the breach of a con- 2. Who to tract, if a party who ought to join be omitted, the objection can only be join or taken by plea in abatement, or by way of apportionment of the damages Conse on the trial (1); and the defendant cannot, as in actions in form ex con- quences of tractu, give in evidence the non-rejoinder, as a ground of nonsuit on the non joind plea of the general issue (2); or demur; or move in arrest of judgment (3); or support a writ of error; although it appear upon the face of the declaration or other pleading of the plaintiff, that there is another party who ought to have joined (f) (4). And if one of the several part-owners of a chattel sue alone for a tort, and the defendant do not plead in abatement, the other part-owners may afterwards sue alone for the injury to their undivided shares, and the defendant cannot plead in abatement of such actions (g).

If however too many persons be made co-plaintiffs, the objection, if it Conseappear on the record, may be taken advantage of either by demurrer, in quences of arrest of judgment (h); or by writ of error (i); or if the objection do not misjoinder appear on the face of the pleadings, it would be a ground of nonsuit on the trial (k) (5) though if two tenants in common join in detinue of charters, it is said if one be nonsuit the other shall recover (l) (6).

We have already seen that choses in action ex contractu are not in gen- 3dly. eral assignable at law, so as to enable the assignee to sue in his own When the name (m); the same rule prevails in case of injuries ex delicto either

(e) 5 M. & Sel. 64; 2 Chit. Rep. 410. (f) 1Saund. 291 g; 6 T. R. 766; 7 T. R. 279; 2 Saund. 117, 47 g; 1 B. & P. 75; 2 Id. 123; 5 East, 407, 420.

(g) 7 T. R. 279; 3 Keb. 244; 5 East, 407. (h) 10 Moore, 446.

interest in the prop(i) 3 B. & P. 150; 2 Saund. 116 a.; Cro. been asEliz. 473.

(k) Cro. Eliz. 148.
(1) Co. Lit. 197 b.; 3 East, 62; 12 East,

452; 2 New Rep. 454, 365.
(m) Ante, 15.

286. See, however, 14 Serg. & Rawle, 370. See Decker v. Livingston, 15 Johns. 479. If one, who has a good cause of action join in trespass, quare clausum fregit, with one who has no cause of action, the suit cannot be sustained. Murray v. Webster, 5 N. Hamp. 391.

(1) See Frazier v. Spear, 2 Bibb, 385; Gilbert v. Dickerson, 7 Wendell, 449; Wheelwright v. Depeyster, 1 Johns. 471; Pickering v. Pickering, 11 N. Hamp. 141. But in an action of replevin brought by one part-owner of a chattel, after verdict for the plaintiff, the judgment was arrested: and the court took a distinction between this case, in which the judgment would be for a chattel, not capable in law of severance, as well as for dainages, and those actions in which damages only can be recovered. Hart v. Fitzgerald, 2 Mass. 509.

(2) But See Smoot v. Wathen, 8 Missouri, 522, in which a different rule is adopted; and see Ellis v. Culver, 2 Harrington, 129.

(3) Vide Wheelwright v. Depeyster, 1 Johns. 471; Brotherson v. Hodges, 6 Johns. 108; Bradish v. Schenck, 8 Johns. 151. If the husband distrains and avows for rent arising from the wife's land, without joining her, he must show affirmatively, that the rent accrued after the marriage, for such fact cannot be intended; and if it is not shown, the objection may be taken at the trial. Decker v. Livingston, 15 Johns. 479.

(4) Thompson v. Hoskins, 11 Mass. 419; Bradish v. Schenck, 8 Johns. 151; Hall v. Adams, 1 Aik. 166; Bell v. Layman, 1 Monro, 40; Rich v. Benfield, 1 Wend. 380; Wilson v. Gamble, 9 N. Hamp. 74.

(5) Grover v. Hunnewell, 6 Pick. 222. So where two or more join in a qui tam or popular action to recover a penalty,-as there can be no joint interest in a penalty, unless expressly so given by Statute. Vinton v. Welsh, 9 Pick. 87; Hill v. Davis, 4 Mass. 137. So where two or more sue for a malicious prosecution of a suit against them jointly, their injury being in law several. Ainsworth v. Allen, Kirby, 145. See Leavitt v. Sherman, 1 Root, 159.

(6) If the defendant, in an action for a tort, settle with one of the plaintiffs, he is still answerable to the others. Baker v. Jewell, 6 Mass. 460. That the rule is the same in actions ex contractu, vide ante, 8. But if one of the co-plaintiffs release the defendant, it is a complete bar to the action. Austin v. Hall, 18 Johns. 286.

erty has

signed.

Ι.

PLAINTIFFS.

er, &c.

to the person, or to personal (1) or real property. Therefore an heir cannot maintain an action for waste committed in the time of his ancestor; nor 2. Who to the grantee of a reversion for waste committed before the grant (n); though join or sev- we have already seen that if a person have the immediate reversion or remainder in fee, in tail, or for life, or years, vested in him at the time of the waste committed, he may maintain an action on the case for such injury to his estate (o). Anda devisee may support an action for the continuance [*67] of a nuisance erected in the life-time of the testator, for every continuance of a nuisance makes it a fresh one (p.) So a remainder man may support an action for undermining a wall during the tenancy for life, if the excavation should be continued, and the wall fall down during his own time (9). And if the owner of an estate deliver the title deeds to a bailee, and afterwards convey away the estate, the new proprietor must be the plaintiff if the bailee wrongfully detain the deeds after the purchase (r). And the assignee of a copyright, or the purchaser of any personal chattel, may sue for an injury after he became the proprietor (s). So it seems that a wrongful seizure of goods by a sheriff, under a fi. fa. against B., does not preclude C. the real owner, from afterwards, and whilst the goods remain in the possession of the sheriff, selling and assigning his property in the goods to D,, and if the sheriff afterwards sell the goods, D. may support trover against him (t).

4thly. When one of several

parties in

terested is

dead.

When one or more of several parties jointly interested in the property at the time the injury was committed is dead, the action should be in the name of the survivor, and the executor or administrator of the deceased cannot be joined, nor can he sue separately; and therefore to an action of trover brought by the survivor of three partners in trade, it cannot be objected that the two deceased partners and the plaintiff were joint merchants, and that in respect of the lex mercatoria the right of survivorship did not exist, for the legal right of action survives, though the beneficial interest may not (u.) But if the parties had separate interests, in respect of which they might have severed in suing, the personal representative of the deceased may maintain a separate action, provided the tort was not of such a nature that it died with the person. At common law, when an action had been commenced in the name of two or more persons, and one of them died pending the suit, it abated; but by the 8 & 9 W. 3, c. 11, s. 7,(x), it was enacted, "that if there be two or more plaintiffs or defendants and one or more of them should die, if the cause of such action shall sur

(n)-2 Saund. 252 a. note 7; 2 Inst. 305.
(0) Ante, 63; 2 Saund. 552 b.

(p) Cro. Jac. 231.

(g) 1 R. & Moo. C. N. P. 162; 5 B. & C. 263, 268; 2 Dow. & R. 14, S. C.

(r) 4 Bing. 106.

(s) See 5 M. & Sel. 105.

(t) Friday v. Hart, tried at Maidstone and

afterwards decided in K. B. on motion for a new trial, N. B. Osbaldestone and Murray, attorneys, MS.

(u) 1 Show. 188; Carth. 170; 2 M. & S. 22; ante, 19.

(x) See the cases 2 Saund. 72i.; Rep. temp. Hardw. 395; Bac. Ab. Joint-tenan.s, K.

(1) But it has been held, that the assignee of a bond might maintain trover for it in his own name, against the obligor, who had got it into his possession, and converted it. Cowles v. Hawley, 12 Johns. 484. The grantee of demised premises cannot sue in his own name, upon a guaranty as to the rent reserved in the lease, given by a third person to his grantor; the action, notwithstanding the Revised Statutes, must be sued in the name of the grantor. Harbeck v. Bylvester, 13 Wend. 608.

When one

of several

vive to the surviving plaintiff or plaintiffs, or against the surviving de- I. fendant or defendants, the writ of action shall not be thereby abated, but PLAINTIFFS such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defen- parties indant or defendants (1); and consequently, since that statute, if one of terested is several plaintiffs die pending a suit, and the cause of action would survive dead. to the survivor, he may proceed in the action. But if the cause of action do not survive, then the action would abate; as if the husband and wife [ "68 ] sue for the slander of the wife, if she die pending the suit, the husband cannot proceed further (y).

death of

We have seen that the right of action for the breach of a contract upon 5thly. In the death of either party in general survives to and against the executor case of the or administrator of each (z); but in the case of torts, when the action the party must be in form ex delicto, for the recovery of damages, and the plea not injured. guilty, the rule at common law was otherwise; it being a maxim that actio personalis moritur cum persona (a) (2). And we shall find that the statute 4 Ed. 3, c. 7 (3), has altered this rule only in its relation to personal property, and in favor of the personal representative of the party injured; but if the action can be framed in form ex contractu, this rule does not apply (b) (4). We will now consider the rule as it affects actions for injuries to the person, and personal and real property.

In the case of injuries to the person, whether by assault, battery, (5), Injuries to false imprisonment, slander, or otherwise, if either the party who received the person. or committed the injury, die, no action can be supported either by or against the executors or other personal representatives (c); for the statute 4 Ed. 3, c. 7, has made no alteration in the common law in that respect (d); and the statute 3 & 4 W. 4, c. 42, s. 3, only gives executors and administrators an action for torts to the personal or real estate of the party injured, and not for mere injuries to the person; and a promise to marry is considered of so personal a nature, that although the action for its breach is in form ex contractu, yet the executor of the party to whom the promise was made cannot sue (e).

At common law, in the case of injuries to personal property, if either party died, in general no action could be supported, either by or against the personal representatives of the parties, where the action must have been in form ex delicto and the plea not guilty (ƒ) (6) ; but if any contract could be

(y) 4 Taunt. 884. (z) Ante, 19.

(a) See the observations on this rule in general, 3 Bla. Com. 302; 1 Saund. 216, 217, n. 1; 3 Cowp. 371 to 877; 8 Woodes. Lect. 73; Vin. Ab. Executors, 123; Com. Dig.

Administrator, B. 13.

(b) See 3 Woodes. Lect. 78, 79; Marsh. 14.
(c) 3 Bla. Com. 203; 2 M. & Sel. 408.
(d) 1 Saund. 217, n. 1; Sir W. Jones, 174.
(e) Ante, 19.

(f) Cowp. 371 to 377.

(1) Vide Laws of New York. Act for amendment of the law, s. 6, 1 R. 1 519; 2 Rev. Stat. 386. 1. See also 3 Smith's Laws of Pennsylvania, p. 30.

(2) See Per Morton, J. in Wilbur v. Gilmore, 21 Pick. 252.

(3) In force in Pennsylvania, Robert's Dig. 248. Report of the Judges, 3 Binn. 610. In Massachusetts, see Per Morton, J. in Wilbur v. Gilmore, 21 Pick. 252.

(4) Middleton v. Robinson, 1 Bay. 58; Pitts v. Hale, 3 Mass. 321; Stetson v. Kempton, 18 Mass. 273; M'Evers v. Pitkin, 1 Root, 216; Jones v. Hoar, 5 Pick. 285; Cooper v. Craine, 4 Halst. 173; Troup v. Smith, 20 Johns. 43.

(5) Miller v. Umbehower, 10 Serg. & Rawle, 31.

(6) Death of the plaintiff in replevin does not abate the suit; his representatives may prosecute it. Fisher v. Beall, 1 Har. & Johns. 31; Pitts v. Hale, 3 Mass. 321; Jenney t. Jenney, 14 Mass. 282; Reist v. Heilbrenner, 11 Serg. & R. 181. Contra, Miller v.

I.

PLAINTIFITS

implied, as if the wrong-doer converted the property into money, or if the goods remained in specie in the hands of the executor of the wrong-doer, 5. Death assumpsit for money had and received might be supported at common law of party in by or against the executors in the former case, and trover against the exe

jured.

[ *69 ]

cutors in the latter (g) (1). By the statute 3 Ed. 3, c. 8, intituled "Exccutors shall have an action of trespass for a wrong done to the testator," and reciting "that in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished," it is enacted, "that the executors in such cases shall have an action against the trespassers, and recover their damages in like manner as they, whose executors they be, should have had if they were in life (2) ;" and this remedy is further extended to the executors of executors (h), and to administrators (i). It has been observed, that the taking of goods and chattels was put in the statute merely as an instance, and not as restrictive to such injuries only, and that the term "trespass" must, with reference to the language of the times when the statute was passed, signify any wrong (k); and accordingly the statute has been construed to extend to every description of injury to personal property, by which it has been rendered less beneficial to the executor, whatever the form of action may be (); so that an executor may support trespass or trover (m) (3), case for a false return to final process (n), and case or debt for an escape (4), &c. on final process (o) (5). And although it has been doubted

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Langton, Harper, 1312. Death of one of several plaintiffs, in an action of trespass, qu. cl.fr. does not abate the suit; Haven v. Brown, 7 Greenl. 431; Boynton v. Rees, 9 Pick. 528; Wilson v. Slaughter, 3 J. J. Marsh. 595.

Death of one of the plaintiffs in a qui tam action does not abate the suit.

2 Chip. 37.

Wright v. Eldred,

A petition for review abates by petitioner's death. Woodward v. Skolfield, 4 Mass. 375. So of a motion for a new trial. Turner v. Booker, 2 Dana, 335.

Action of debt for a statute penalty abates by a single plaintiff's death. Little v. Conant, 2 Pick. 527; Estis v. Lennox, Cam. & Nor. 72. So of an action on the case for diverting a water course. Holmes v. Moore, 5 Pick. 257.

Action by father, for seduction of his daughter, abates by his death. M'Clure v. Miller, 4 Hawks. 133. See Miller v. Umbehower, 10 Serg. & R. 31; Morris v. Corson, 7 Cowen, 281. Whenever a party dies during a term, judgment may be entered as of a day before his death. Griswold v. Hill, Paine, 483. See also Goddard v. Bolster, 6 Greenl. 427.

(1) Middleton v. Robinson, 1 Bay. 58; Jones v. Hoar, 5 Pick. 285; Cooper v. Crane, 4 Halst. 173; Wilbur v. Gilmore, 12 Pick. 120; Wilbur v. Gilmore, 21 Pick. 250.

(2) Vide Laws of New York, sess. 36, c. 71, s. 6, 7; 1 R. L. 311, 312.

(3) Nettles v. D'Orley. 2 Brevard, 27. Or replevin, Reist v. Heilbrenner, 11 Serg. & Rawle, 131. And an executor need not describe himself as such, in an action of trover to recover property of the testator, wrongfully converted by a stranger. Trash v. Donahue, Aiken's (Vermont) 370. Vide Toule v. Lovet, 6 Mass. 394; Sneider v. Croy, 2 Johns. 227.

(4) The executor of a sheriff cannot maintain an action on the case against the gaoler, for the escape of a prisoner committed to his custody by the testator. Kain v. Ostrander, 8 Johns. 207. (5) So, case against a sheriff for the default of his deputy in not returning an execution. Paine v. Ulmer, 7 Mass. 317. And an executor may maintain an action for an injury done to goods of his testator, before probate or seizure; and in his individual right without declaring as executor. So an administrator may sue in trover in his own name for

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