II. DEFENDANTS. able. &c. (h). In these cases the action should in general be against the party who did the act complained of, or against the occupier (i) (1); and 1. Who li- not against the owner, if the premises were in the possession of his tenant, unless he be covenanted to repair (k) (2). But if the owner of land, having erected a nuisance thereon, demise the land, an action may be supported against him, though out of possession, for the continuance of it; for by the demise he affirmed such continuance (1); and every occupier is liable for the continuance of the nuisance on his land, &c. though erected by another, if he refuse to remove the same after notice (m). When there are several owners or persons chargeable as joint-tenants or tenants in common in respect to their real property, though the action be in form ex delicto, they should be made defendants, or the party who is sued alone may plead in abatement (n). Liability servants, nies. An agent or servant, though acting bona fide under the directions and of agents, for the benefit of his employer, is personally liable to third persons for and attor- any tort or trespass he may commit in the exccution of the orders he has received (o). If the master has not the right or power to do the act [84] complained of, he cannot delegate an authority to the servant, which will protect the latter from responsibility. Therefore a servant may be charged in trover, although the act of conversion be done by him for his master's benefit (p) (3). And a bailiff who distrains is liable, if the principal has no right of distress (q). And a custom-house officer may be sued for a wrongful seizure made by him in that character (r) (4). There is no injustice in this doctrine as regards the servant; for if the act were not manifestly illegal, the indemnity of the principal to the servant against the consequences is not illegal, and will, in many instances, be implied (s). And where a servant received a bill of exchange, which he promised to the deliverer that his master should discount, but which the latter refused to do and insisted on retaining the same as a security for a previous debt from the deliverer, it was held that such deliverer might support trover against the servant (t). (1) Vide Compton v. Richards, 1 Price's Ex. 27. An action does not lie for carelessly leaving a maple syrup in one's uninclosed wood, whereby the plaintiff's cow being suffered to run at large, and having strayed there, is killed by drinking it. Bush v. Brainard, 1 Cowen, 78. So, where A. sets fire to his own fallow ground, as he may lawfully do, which communicates to and fires the wood land of his neighbor, no action lies against A. unless there be some negligence or misconduct in him or his servants. Clark v. Foot, 8 Johns. 421. (2) The defendant was lessor of a house which the lessee had ceased to inhabit, for the purpose of having it thoroughly repaired, which was done at the expense of the lessee, but under the superintendence of the defendant's lessor; it was held that an action on the case was properly brought against the lessor, for the negligence of his workmen, in leaving open the cellar door, whereby the plaintiff in the night fell in and hurt himself. Leslie v. Pounds, 3 Taunt. 649. (3) See, however, Berry v. Vantries, 12 Serg. & 242, was held to be law. (4) Vide Hoyt v. Gilston, 18 Johns. 141. Rawle, 89, where Mires v. Solebay, 2 Mod. II. DEFEND ANTS. But in order to sue a servant in trover, an actual, not a coustructive, conversion should be shown; and the servant's reasonable and qualified refusal to deliver up the goods until he had consulted his master, and obtain- 1. Who lied his sanction, does not amount to a conversion (u). And in cases in able. which a contract, express or implied, with the master, is the ground of action, the servant seems not to be liable for any neglect or nonfeasance which, as such servant, he is guilty of in the execution of or with relation to the contract (x). If a coachman lose a parcel, the master, not the coachman should be sued; and it seems that a servant is not liable for his false warranty, or deceit, or the sale of goods by his master's orders (y). An attorney acting bona fide, and professionally, may not be personally liable in cases where he does not exceed the line of his duty. Thus, it seems, that he is not liable in case for a malicious and unfounded arrest (regular in form), which may be considered the tort of his client only (z). But if an attorney by himself or his agent, issue any illegal or irregular process or execution in a cause, he, equally with the client, is liable as a trespasser (a). In general, an action for the breach of duty in execution of the office Sheriffs. *of sheriff must be brought against the high sheriff (1), although the un- [ 84 ] der sheriff or the bailiff of the sheriff were the party actually in default (6). The under-sheriff or bailiff, cannot in general be sued; but there are some instances of misfeasance and malfeasance in which they may be liable to the party aggrieved; as if they voluntarily permit an escape, or are personally guilty of extortion, or any act of trespass in executing process, for in such cases the under-sheriff or officer becomes an active personal wrong-doer (c). So a sheriff is liable in trover if he seize and sell goods after an act of bankruptcy, although unknown to him and before fiat (d). But an action is sustainable against the sheriff for the act of a bailiff in taking the goods of a party under an execution of the County Court against a third person, because there the sheriff as judge of that Court acted judicially (e) and a steward of a Court Baron has the same privilege and protection (f). It is a general rule that an action does not lie against a steward, mana- Intermediger, or agent, for damage done by the negligence of those employed by ate agents. him in the service of his principal, but the principal, or those actually employed alone can be sued. This was decided in Stone v. Cartwright (g) (u) 5 B. & A. 247; 1 Hodges, 61; 1 Bing. N. C. 414. (z) See ante, 34, 35; 12 Mod. 488; Say. 41; Bac. Ab. Action on the Case, B. (y) Id.; Rol. Abr. 95 T.; Com. Dig. Action upon the Case for Deceit, B.; 3 P. Wms. 379. (z) 1 Mod. 209, cited per cur., 3 Wils. 378, 379. It was there said the attorney was not liable, although he knew the demand was unfounded Sed quære. (a) 3 Wils. 368; 6 B. & C. 38. In 3 Esp. 202, 203, Lord Kenyon is stated to have been of opinion, that an attorney acting bona fide, and professionally, is not liable in trespass for causing a suspected party to be taken on a warrant. (b) Ante, 80, 81; Cowp. 403. (c) See 12 Mod. 488; 1 Mod. 209; 1 Salk. 18; 1 Lord Raym. 655. The statutes against extortion expressly render liable the bailiff or officer committing it. (d) Garland v. Carlisle, 2 Cr. & M. 31. (e) Tinsley v. Nassau, 1 Mood. & Malk. 52; (f) Holroyd v. Breare, 2 B. & Ald. 473. (1) Vide White v. Johnson, 1 Wash. 160, 161; Armistead v. Marks, 1 Wash. 325. For an injury done by a deputy or under-sheriff to the person or property of another, the action must be the same, whether brought against the deputy or the sheriff. Campbell v. Phelps, 17 Mass. II. DEFEND- 1. Who li able. to the and Lord Kenyon observed, "that the action must, in these cases, be brought against the hand committing the injury, or against the owner, for whom the act was done." The first principal is liable on the ground that the original authority flows from him and the tort occurs in the course of the execution of work done for his benefit (h). But in these cases if the intermediate agent personally interfere, and particularly order those acts to be done from whence the damage ensues, he is responsible (i); and it was therefore held, in an action on the case for obstructing the plaintiff's lights, that a clerk who superintended the erection of the building by which they were darkened, and who alone directed the workmen, might be joined as a co-defendant with the original contractor, by whom he was employed (j) The liability of government and other public officers has been before adverted to (k). 2dly. With There are some torts which in legal consideration may be committed reference by several, and for which a joint action may be supported against all the number of parties. Thus a joint action may be brought against several for a malithe defend. cious prosecution, or an assault and battery; or for composing, "publishants. ing or signing a libel (k) (1); or for not setting out tithe (1); or for [86] keeping a dog to kill game, not being qualified (m). But if in legal con sideration the act complained of could not have been committed by several persons, and can only be considered the tort of the actual aggressor, or the distinct tort of cach, a separate action against the actual wrongdoer only, or against each, must be brought. Therefore a joint action cannot be supported against two for verbal slander (n) (2); nor will debt on a penal statute lie against several for what in law is a separate offence in each; as against two proctors for not obtaining and entering their certificates (o) (3); or against several persons for bribery (p). In an action of debt to recover money lost at play, the defendant cannot plead a non-joinder in abatement (q). And if a joint action of trespass be brought against several persons, the plaintiff cannot declare for an assault and battery by one, and for the taking away of goods by the others, because these trespasses are of several natures (r). And in trover against several defendants, all cannot be found guilty on the same count, without proof of a joint conversion by all (s). These rules, however, do (h) 1 E. & P. 404; 3 Camp. 403. (k) Ante, 37, 42. (k) 2 Saund. 117 a; Latch. 262; 2 Burr. (1) Carth. 361; 2 Vin. Ab. 70, pl. 21. (n) Id. Ibid.; 2 Wils. 227; Dyer, 19 a; Ab. 781; 2 Vin. Ab. 64, pl. 27. (0) 1 New Rep. 245; 3 East, 574. (p) Griffiths v. Stratton and others, judgment in error in the House of Lords from the Exchequer in Ireland, 17th April, A. D. 1806. (q) 28 MSS. Ashurst Paper Books, 233. Sed Vide 7 T. R. 257. (r) 2 Saund. 117 a, Sty. 153, 154; 3 Esp. Rep. 202, 204. (1) Vide Thomas v. Rumsey, 6 Johns. 26. An action for a libel will lie against two or more, if it be a joint act by all. Harris v. Huntington, 2 Tyler, 129. Two towns may be sued jointly for damages sustained by the insufficiency of a bridge between them. Peckham v. Burlington, Brayt. 134. (2) Vide Thomas v. Rumsey, 6 Johns. 32; 17 Mass. 186. (3) If debt qui tam be sued against several, demanding a joint forfeiture, on a plea of nil debet, all the defendants ought to be found indebted, because the form of the action and plea is on a joint contract, although the debt arises from a tort. Burnham v. Webster, 5 Mass. 270. See Hill v. Davis, 4 Mass. 137; Boutelle v. Nourse, 4 Mass. 481. II. DEFEND ANTS. not(s) prevail in criminal proceedings, so as necessarily to defeat an indictment against several for distinct offences in separate counts, though the Court have a discretionary power to quash the indictment, where incon Who to be venience might arise from the joinder of many persons for different of- joined or fences (t). omitted. Conse or non If several persons be made defendants jointly, where the tort could not in point of law be joint, they may demur, and if a verdict be taken against misjoinder all, the judgment may be arrested or reversed on a writ of error (u) (1); joinder. but the objection may be aided by the plaintiff's taking a verdict against only one (x); or if several damages be assessed against each, by entering a nolle prosequi as to one after the verdict and before judgment (y). In other cases (2), where in point of fact and of law several persons might have been jointly guilty of the same offence, the joinder of more persons than were liable in a personal or mixed action in form ex delicto, constitutes no objection to a partial recovery, and one of them may be acquitted, and a verdict taken against the others (z) (3). On the other hand, if several persons jointly commit a tort, the plaintiff in general has his election to sue all or some of the parties jointly, or one of them sep- [ 87 ] arately (4), because a tort is in its nature a separate act of each individual (a) (5). Therefore in actions in form ex delicto, as trespass, trover or case for malfeasance, against one only for a tort committed by several, he cannot plead the non-joinder of the others in abatement or in bar, or give it in evidence under the general issue; for a plea in abatement can only be adopted in those cases where regularly all the parties must be joined, and not where the plaintiff may join them all, or not, at his election (b). And even if it appear from the declaration or other pleadings that the tort was jointly committed by the defendant and another person, no objection can be taken (c) (6). This rule applies only in actions for after judgment, Tidd's Prac. 9th ed. 895; 2 (a) 6 Taunt. 29, 35, 42. (b) Id. ibid.; 1 Saund. 291 d. e; 5 T. R. (1) See Russell v. Tomlinson, 2 Conn. 206; Peters v. England, 1 M'Cord, 14; M'Keoron v. Johnson. 1 M'Cord, 578; Franklin Fire Ins. Co. v. Jenkins, 3 Wendell, 130; Orr v. Bank of U. States, 1 Ham. 45. (2) An action of ejectment was brought against five defendants, who entered into the consent rule jointly, and pleaded jointly. They severally possessed the premises in separate parts; and the jury having found each defendant separately guilty as to the part in his possession, and not guilty as to the residue, judgment was rendered accordingly. Jackson v. Woods, 5 Johns. 278. (3) Vide Lansing v. Montgomery, 2 Johns. 382; Cooper and another v. South and others, 4 Taunt. 802; Jackson v. Woods, 5 Johns. 280, 281. Cunningham v. Dyer, 2 Monroe, 51; Wright . Cooper, 1 Tyler, 425; Chewet v. Parker, 1 Rep. Con. Ct. 333; Lockwood v. Bull, 1 Cowen, 322; Pearson v. Stroman, 1 Nott and M'C. 354; Hayden v. Nott, 9 Conn. 367. (4) Vide Thomas v. Rumsey, 6 Johns. 31; Burnham v. Webster, 5 Mass. 269, 270; Johnson D. Brown, 1 Wash. 187. (5) A joint action does not lie against separate owners of Dogs, by which dogs the sheep of a third person have been worried and killed. Van Skenburgh v. Tobias, 17 Wend. 562; Russell v. Tomlinson, 2 Conn. 206; Adams v. Hall, 2 Verm. 9. II. DEFEND- 2. When ted. torts, strictly unconnected with contract; for where an action on the case is brought merely for the non-feasance of a contract, and in order to support the action a contract must be proved, and is the basis of the suit, (as to be join- in case for a breach of a warranty on a sale, &c.) the joinder of too ed or omit- many defendants will be a ground of nonsuit; and it should seem, that if a joint contractor be not included, the defendant may plead his non-joinder in abatement; for it is not competent to the plaintiff in such an instance to alter or obviate the rules of law with regard to the parties to be sued upon the contract, merely by varying the form of his action, where in substance it is founded on the agreement (d) (1). But it must appear from the declaration, that the gist of the action is for a breach of contract (e). And with regard to carriers and inn-keepers, as their liability is founded on the breach of an implied common-law duty in respect of their particular capacities, if they be sued in case for negligence, no valid objection can be made in respect to the non-joinder of a party; although they may be sued in assumpsit, in which event the objection would be tenable (ƒ). There is a settled distinction in this respect between mere personal actions of tort, and such as concern real property; for if only one tenant in common of really be sued in trespass, trover, or case, for any thing respecting the land held in common, as for not setting out tithe, &c., he may plead the tenancy in common in abatement (g) (2). And in an action of debt for money lost at play, the defendant may plead in abatement, that the money was due from others as well as from himself; such action, though given by statute, being founded on contract (h) (3). These distinctions between the effect of too many or too few persons being made [88] defendants in actions in form ex contractu and in those ex delicto, may in some cases render it advisable to adopt, if practicable, the latter form of action, when it is doubtful who should be made the defendants. Costs now In an action on the case, and in trover or replevin, if one of the defendpayable in ants was acquitted, he was not entitled to costs (i), but in trespass it was general to an acquit- otherwise, unless the judge certified that there was reasonable cause for ted defend- making the acquitted person a defendant (j) (4). And now, by 3 & 4 W. ant unless, &c. (d) 12 East, 454; 2 New Rep. 454; 12 East, 89, S. C. and see 2 New Rep. 365; 1 Wils. 281; 6 Moore, 141; 3 B. & B. 54; 9 Price, 408, S. C.; 1 Saund. 891 e, and note (e). (e) Id. ibid.; 2 New Rep. 369; 6 Moore, 158. (f) 3 East, 62; 2 Chit. R. 1; 3 B. & B. 54, 171; 6 Moore, 141, 154, 158; 9 Price, 408, S. C. But the declaration must be framed accordingly, 6 Moore, 154; 2 Chit. Rep. 1; 9 Price, 408, S. C. (g) 1 Saund. 291 e.; 5 T. R. 651; 7 T. R. 257; Bac. Ab. Joint-tenants, K.; 2 East, 574. (h) 7 T. R. 257. Sed quære, see 28 Ashhurst, J.'s MSS. Paper Books, 233. (i) 2 Stra. 1005; Tidd, 9th ed. 986. (j) 8 & 9 W. 3 c. 11; Tidd's Prac. 9th edit. 986. If, however, all the defendants joined in pleading, the acquitted defendant was only entitled to forty shillings costs. Id. ibid; 2 M. & Sel. 172; 4 B. & Ald. 43, 700. (1) In an action of tort against two for misfeasance in the performance of a joint contract, the plaintiff cannot recover against either defendant without proving a joint contract. Wright v. Gear, 6 Vermont, 151. Where the duty is one imposed by law, and a contract is not necessary to be stated, and the declaration is in tort, and the gravamen a misfeasance, it seems the plaintiff may recover against one defendant without the other, ib. (2) Per Curiam, 4 Pick, 308. But in case against three for erecting a dam by means whereof plaintiff's mills were obstructed, two of the defendants pleaded in abatement the death of the third pending the suit; but upon demurrer the plea was held ill, for that it did not appear by the pleadings that the defendants were charged by reason of their holding real estate as joint-tenants or tenants in common. Summer v. Tilcoton, 4 Pick. 308. (3) Vide Hill v. Davis, 4 Mass. 137; Burnham v. Webster, 5 Mass. 270. (4) Acc. Laws N. Y. sess. 36. c. 96 s. 10; 1 R. L. 345; 2 Rev. Stat. 616 s. 19. |