I. PLAINTIFFS 8. In case of marriage. With respect to real property. she cannot for carrying it away (t). However, a feme covert executrix may and ought to join with her husband; the declaration stating the interest, and showing that she sues in autre droit (u). And there are some cases in which, though the produce of the wife's labor be the property of the husband, yet in respect of her being the meritorious cause of action, she may be joined, as in the case of the dippers at Tunbridge Wells (x). In real actions for the recovery of the land of the wife, and in a writ of waste thereto, the husband and wife must join (y). But where the action is merely for the recovery of damages to the land or other real property of the wife during the coverture; or for a tort, which prejudices a [75] remedy by husband and wife, as in the case of quare impedit, "a rescue, &c. the husband may sue alone (z) (1), or the wife may be joined (a) ; her interest in the land being stated in the declaration. But a demand for removal of personal property, as corn or grass when severed from the land, ought not, in the latter case, to be included, because, as we have seen, the entire interest in personalty is vested in the husband (b) (2). Conse or non If the husband survive, he may maintain an action of trespass, &c. for any injury in regard to the person or property of the wife, for which he might have sued alone during the coverture. Thus, he might maintain an action after his wife's death for any battery or personal tort to her, which occasioned him particular injury; as the loss of her society and assistance in his domestic affairs; or a pecuniary expense (c); or for any injury to the land of the wife when living (d). If the wife die pending an action by her husband and herself for any tort committed either before or during coverture, and to which action she is a necessary party, the suit will abate (e). If the wife survive, any action for a tort committed to her personally, or to her goods or real property before marriage or to her personal or real property during coverture, will survive to her (ƒ); and she may include in the declaration in such action counts for wrongs committed after her husband's death (g). The consequences of a mistake in the proper parties in the case of husquences of band and wife, may be collected from the preceding observations, and seem misjoinder to be nearly the same in action in form ex delicto as in those ex contractu (h). If the wife be improperly joined in the action, and the objection appear from the declaration, the defendant may in general demur, move in arrest of judgment, or support a writ of error (i); though we have joinder. (t) Wils. 424; Cro. Eliz. 133; Salk. 119. (x), 2 Wils. 414, 424; Com. Dig. Bar. & (y) 1 Bulst. 21; 7 H. 4, 15 a.; 3 H. 6, 58; Com. Dig. Bar. & Feme, V. Wife must join in an ejectione firma, though ejection after marriage, Plowd. 418. (z) Bro. Bar. & Feme, pl. 15, 128, 4; Selw. N. P. 291, 5th ed.; 295, 6th ed.; Com. Dig. Bar. & Feme, X. (a) Com. Dig. Bar. & Feme, X.; 2 Wils. (1) Jackson v. Hopkins, 19 Wend. 339. 423, 424; 2 Bla. Rep. 1236; Cro. Car. 418, 437: Com. Dig. Bar. & Feme, V. X.; Pleader, 2 A. 1. (b) Ante, 72, 73; 1 Salk. 119, note (b). (c) Ante, 73. (d) Com. Dig. Bar. & Feme, Z., (e) Freem. 225; Yelv. 89; 4 Taunt. 884. (f) Rep. temp. Hardw. 398, 399; Freem. 224; Palm. 313. (g) Palm. 313; Com. Dig. Bar. & Feme, 2 A. (h) Ante, 33, 59; 3 T. R. 631. (i) 1 Salk. 114, 110; 2 Bla. Rep. 1236; 2 Chit. Rep. 697. (2) Husband and wife cannot maintain a joint action for a penalty given by statute. (Semble.) Hill and wife v. Davis, 4 Mass. 137. PLAINTIFFS 8. In case seen that after verdict the mistake may sometimes be aided by intend- I. ment (k) (1). If the husband sue alone when the wife ought to be joined either in her own right or in autre droit, he will be non-suited; for though of marin general the non-joinder of the party as co-plaintiff in an action for a tort riage. can only be pleaded in abatement; yet that rule only applies in those cases in which the party suing had some legal interest in his own right in the property affected. A husband has, independently of his wife, no legal interest or cause of action whatever for injuries to her, or her property, in those instances in which it is necessary to join her as a plaintiff in an action. *II DEFENDANTS. [ *76 ] II. DEFEND ANTS. 1st. As be and with In personal or mixed actions, in form ex delicto, the person committing the injury, either by himself or his agent, is in general to be made the defendant; but real actions can only be supported against the claimant of the freehold (1). The general rule is, that all persons are liable to be tween the sued for their own tortious acts, unconnected with, or in disaffirmance original of, a contract. Therefore, although an infant cannot in general be sued in parties, an action in form ex contractu, except for necessaries, he is liable for all reference torts committed by him, as for slander; assaults, and batteries, &c. (m); to liability and also in detinue for goods delivered to him for a purpose which he has Infants. failed to perform, and which goods he refuses to return (n) (2). But a plaintiff cannot in general, by changing his form of action, charge an infant for a breach of contract; as for the negligent or immoderate use of a horse, &c. (o) (3), nor can he be a trespasser by prior or subsequent assent, but only by his own act (p). A married woman is liable Married for torts actually committed by her, though she cannot be a trespasser women. by prior or subsequent assent (q). And although a lunatic is not punish H. (k) Ante, 33, 59; Ashton's Entr. 61. (1) Booth, 3 28, 29; 8 Lev. 330. (m) 8 T. R. 336, 387; Bac. Abr. Infancy (n) 1 New Rep. 140. (1) Lewis v. Babcock, 18 Johns. 443. (2) Per Curiam, 3 Pick. 934. So an infant is liable in trover. Vasse v. Smith, 6 Cranch, 231. But by electing to bring trover, the plaintiff cannot convert a case founded on contract, and upon which an infant would not be liable, into a tort so as to charge him. Curtin v. Patton, 11 Serg. & Rawle, 310; Wilt v. Welsh, 6 Watts, 1. See Schenck v. Strong, 1 South, 87. (3) But an infant who hires a horse to go to a place agreed on, but goes to another place in a different direction, is liable in trover for an unlawful conversion of the horse. Homer 7. Thwing, 3 Pick. 492. Contra Schenck v. Strong, 1 South, 87. The court of errors in New York decided, that if an infant having a horse on hire, does a wilful and positive act, amounting to an election, on his part, to disaffirm the contract of hiring, the owner was entitled to the immediate possession. And where an infant drove a mare, which he had on hire, with such violence as that she died of his cruel treatment; held, that though case would not lie, trespass might be maintained against him. Campbell v. Stakes, 2 Wend. 137. Independent of the contract of hiring, trespass would be the proper remedy. If the plaintiff orders in case, he affirms the contract of hiring, and the plea of infancy is a good defence to such an action; for he cannot affirm the contract, and at the same time, by alleging a tortious breach thereof, deprive the defendant of his plca of infancy, ib. I. DEFEND ANTS. 1. Who liable. tions. able criminally, he is liable to a civil action for any tort he may commit (r) (1). With regard to the liability of corporations, it is a clear general rule Lunatics. that they are liable to be sued as such in case or trover for any torts they Corpora- may cause to be committed (s) (2). It has been laid down that a corporation cannot be sued in its corporate capacity in trespass (t); but this position appears to be incorrect, for although a corporation cannot, as a corporate body, actually commit a trespass, yet they may order it to be done, and ought therefore to be responsible for the consequences (u). In these cases it is often very material to fix the corporation with liability, and to be entitled to redress from the corporate funds, rather than to be driven to a remedy against servants of the corporation. It seems that a corporation may be sued for a false return (x) (3). The inhabitants of a county are not a corporation, and therefore cannot be sued by that description for an injury occasioned by the neglect to build a public bridge, or for any other injury arising from the neglect of the county at large (y). It is a general rule that corporations and incorporated companies *may be sued in that character, for damages arising from the breach by them of a duty imposed upon them by law (4). An individual who has suffered loss in consequence of the decay of sea walls, which a corporation is directed to repair, under the terms of a grant for the crown, conveying a (r) Hob. 134; 2 East, 104; Bac. Abr. Trespass, G., Idiot, E.; 2 Roll. Ab. 547, pl. 4, E. (s) 16 East, 6; Smith v. Birmingham Gas Light Company, 1 Adol. & El. 526. (t) Bro. Corporation, pl. 48; Bac. Abr. Trespass, E. 2; 8 East, 230. (u) See 16 East, 7, &c., per Lord Ellenborough. (x) Id. (y) 2 T. R. 667; see 11 East, 847, 355. (1) Ex parte Leighton, 14 Mass. 207. The institution of a suit against a lunatic pending a proceeding in chancery and after lunacy found is improper. 5 Paige Ch. 489. An action at law cannot be sustained against a person in the character of guardian of a lunatic, without joining the non compos in the action as a party defendant. He must be a party plaintiff when suing, and a party defendant when sued. Rogers v. Ellison, 1 Meigs, 88. (2) Trespass on the case lies against a corporation aggregate for a tort. Chestnut Hill Turnp. Co. v. Rutter, 4 Serg. & Rawle, 6. See the early English cases cited by Ch. Justice TILGHAM, in his opinion. See also Gray v. The Portland Bank, 3 Mass. 364. (3) Corporations are liable, by the common law, in the actions of trespass, trover, trespass on the case ex delicto, &c. for torts commanded or authorized by them, and for this purpose the acts of their agents are regarded as the acts of the corporation. Hawkins v. Dutchess. &c. Steamboat Co., 2 Wend. 452; M'Cready v. Guardians of the Poor, 9 Serg. & R. 94; Lyman v. White River Bridge Co., 2 Aik. 255; 2 Hill, 573; Goodlowe v. City of Cincinnati, 4 Haw. 500, 514; Hamilton Co. v. Cincinnati, &c., Wright, 603; Kneass v. Schuylkill Bank, 4 Wash. C. C. 106; Beach v. Fulton Bank, 7 Cowen, 487; Edwards v. Union Bank, 1 Branch, 136. An action cannot be maintained against a corporation aggregate for an assault and battery, Orr v. Bank of United States, 1 Ham. 36. (4) An action on the case will lie against a corporation for the neglect of a corporate duty. as for not repairing a creek as from time immemorial they had been used. Mayor of Linn v. Turner, Cowp. 86; Riddle v. Proprietors, &c., 7 Mass. 169; Townsend v. Susquehannah Turnpike Company, 6 Johns. 90; Steele v. W. Lock Company 2 Johns. 283. So it will lie against them for the negligence of their subordinate agents, although not immediately employed by them. Matthews v. West London Water Works Company, 3 Campb. 403. Corporations created for their own benefit stand on the same ground in this respect as individuals, but quasi corporations created by the legislature for purposes of public policy, are subject, by the common law, to an indictment for the neglect of duty enjoined on them, but are not liable to an action for any neglect unless the action be given by some statute. Mower v. Inhab. of Leicester, 9 Mass. 247. II. DEFEND ANTS. borough, and pier, or quay, with tolls, to the corporation, may sue the corporation for the recovery of damages (2) (1). The Bank of England are liable to an action if they improperly refuse to transfer stock (a); or 1. Who liare guilty of unreasonable delay in the passing of a power of attorney to able. transfer it (b); but they are not liable for refusing to pay dividends due upon stock if they have not received the dividends from government (c). The London Dock Company is liable in case for the carelessness of their servants in unloading goods, although the company derive no profit from the labor (d); and an action lies against an unincorporated waterworks company, if workmen employed by the persons contracting with the company to lay down pipes for conducting water through a public street, are guilty of negligence in performing the work, in consequence of which a passenger is injured (e). trustees But trustees and commissioners acting gratuitously in the execution of Commisacts of parliament for the benefit of the public, and entrusted with the sioners or conduct of public works, are not liable in damages for an injury occasion- under a ed by the negligence or unskilfulness of workmen and contractors neces- statute. sarily employed by them in the execution of the works (f). Upon this principle, where the defendant, as a trustee under a turnpike act, being authorized to cut a drain, had ordered it to be cut in an improper manner, it was decided that he was not liable for a resulting injury, as it appeared that he acted bona fide according to the best of his judgment, and under the best advice he could obtain (g). And in another case (h), the clerk to commissioners for making a road under an act which contained a clause directing actions to be brought against such clerk for acts done by the trustees, was holden not to be liable to an action for an injury sustained in consequence of heaps of dirt being left by the laborers employed by the side of the road, and no lights being placed to enable persons to avoid such heaps. And if a statute enable trustees to do an act, and do not give compensation, they are not liable for a consequential injury resulting to an individual from the act done in pursuance of the statute (i). But if commissioners or trustees under an act of parliament order something to be done which is not within the scope of their authority (k); *or are themselves guilty of negligence in doing that which they are em- [ 78 ] powered to do; or are guilty of arbitrary, wanton, or oppressive conduct (); they render themselves liable to an action, although they are not answerable for the misconduct of persons they are obliged to employ in the execution of orders properly given (m). Therefore, an action was held to be maintainable against commissioners of the lottery, who were compensated for their services, for their negligence, &c. in not adjudging a prize to the holder of a ticket entitled to receive it (n). And persons who negligently or unskilfully perform work, or omit proper precautions 2 Bing. 162. (h) 4 M. & Sel. 27. See 2 Bing. 162. C. 710; 4 D. & R. 195, S. C. (1) 2 B. & C. 707. id. &c. (m) 2 Bing. 159, per Best, C. J.; 2 B. & C. 707, &c. (n) 6 T. R. 646; 2 Bing. 161. 1 Goshen T. Co. v. Sears, 7 Conn. 87. II. DEFEND ANTS. 1. Who li able. Judicial in the course of the necessary repair of a sewer, under the authority of the commissioner of sewers, are liable to an action for the consequential injury sustained by an individual (o.) An action cannot be maintained against a civil or ecclesiastical judge or justice of the peace, acting judicially in a matter within the scope of his and other jurisdiction, although he may decide erroneously in the particular case cers, &c. (p) (1). public offi Nor can an action be maintained against a juryman (q), or the attorneygeneral (r), or a superior military or naval officer (2), for an act done in the execution of his office, and within the purview of his general authority. And commissioners of bankrupts are not liable to an action of trespass for committing a person who does not answer to their satisfaction when examined before them touching the bankrupt's estate and effects (t). But if a public officer have no jurisdiction whatever over the subjectmatter, and his proceedings are altogether coram non judice, he is responsible (u). And it was held, that if a justice of the peace acting ministerially refuse an examination upon the Statute of Hue and Cry, he is liable to an action (x). And it has been observed with regard to the liability of ministerial officers not acting gratuitously, that "if a man take a reward; whatever may be the nature of that reward, for the discharge of a public duty, that instant he becomes a public officer; and if by an act of negligence, or any abuse of his office, any individual sustain an injury, that individual is entitled to redress in a civil action" (y). But magistrates cannot be affected as trespassers, if facts stated to them on oath by a com[79]plainant were such whereof they had jurisdiction to inquire, and nothing Tenants in common. appeared in answer to contradict the first statement (z). And before any action can be brought against a magistrate for any thing done in the discharge of his duty, it must appear that his attention was drawn to all the facts necessary to enable him to form a judgment as to the course he ought to have pursued (a). With regard to joint-tenants and tenants in common of realty, the general rule appears to be that ejectment will lie by one against the other only in (0) 5 B. & A. 837; 1 D. & R. 497, S. C.; 2 B. & C. 710, 711; 4 D. & R. 201, 202, S. C. (p) 1 Salk. 306; Vaugh. 138; 12 Co. 24; Ld. Raym. 466; 5 T. R. 186; 6 Id. 449; 3 M. & Sel. 411. As to justices in general, post, "Trespass." (q) 1 T. R. 513, 514, 535. (r) 1 T. R. 514, 535. (s) 1 T. R. 498, 520, 784; 4 Taunt. 67; 2 C. & P. 146. (t) 1 B. & C. 163; 2D. & R. 353, S. C. See Eden, 2d edit. 97, 98. (u) 3 M. & Sel. 425; 1 B. & C. 163; 2 D. & R. 350, S. C. (x) 1 Leon. 323. The Statute of Hue and Cry was repealed by 7 & 8 Geo. 4, c. 27, and other provisions substituted by chap. 31. (y) Per Best C. J. 5 Bing, 108. (z) 8 East, 113. (a) 3 Bing. 78. (1) Vide Yates v. Lansing, 5 Johns. 282, S. C. 9 Johns. 365. Briggs v. Wardwell, 10 Mass. 356. Phelps v. Sill, 1 Day, 315. The following additional cases were here cited by Day in the former edition; Book of Assize, 27 Ed. 3 pl. 18. 21 Ed. 3 Hil. pl. 16. 9 Hen. 6. 60. pl. 9. 9 Ed. 4. 3. pl. 10. 21 Ed. 4. 67. pl. 49. Standf. P. C. 173. Aire v. Sedgwick, 2 Ro. 199. Hammond v. Howell, 1 Mod. 184. S. C. 2 Mod. 218. Miller v. Searle, 2 Bla. 1145, Mostyn v. Fabrigas, Cowp. 172. Vide Brodie v. Rutledge, 2 Bay, 69. Moore v. Ames, 3 Caines, 170; Young v. Herbert, 2 Nott & M. 168; Ely v. Thompson, 3 Marsh. 76; Little v. Moore, 1 South. 74; Tracy v. Williams, 2 Conn. 113; Tompkins v. Sands, 8 Wend. 468; Evans v. Foster, 1 N. Hamp. 374; Cunningham v. Rucklin. 8 Cowen, 178. (2) Vanderheyden v. Young, 11 Johns. 158. |