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No. 2745.

Book 4, tit. 7, chap. 2, sec. 1, § 2.

the plaintiff was not allowed to recover,

No. 2746.

because the

cause of action arose out of a contract. (a) But an infant was held liable in trover, although the goods were delivered to him under a contract, and although they were not converted actually to his own use. (b)

Art. 5.-Of actions given by statute.

2745. In general, the party to whom an action is given, under a remedial statute, is marked out by its provisions, and he is usually the person injured, and, in that case, it is immaterial whether he has the legal or the equitable right to property on account of which the remedy is given.(c)

When an action is given by the statute to any one who will sue for the same, the party who brings the first suit has a right to maintain his action. In such case, when the penalty is to be recovered partly for the benefit of the informer, and partly for the use of the government, the suit instituted for its recovery is called an action qui tam.

§2.-When the interest of the party injured has been assigned.

2746. It will be remembered that rights of action arising ex contractu, cannot be assigned, except under special circumstances or in particular cases; the same rule holds as to actions arising ex delicto, whether the injury be to the person, personal or real property. But sometimes there is a transfer in fact, and, at other times, only in appearance, of the property relating to which the action arises; in these cases it is not always easy to make a proper choice of suitors.

When incorporeal real property is granted, the

(a) Penrose v. Curren, 3 Rawle, 351. See 25 Wend. 399; 3 Shepl. 233; Wilt c. Welsh, 6 Watts, 9.

(6) Vasse v. Smith, 6 Cranch, 226. (c) Pritchit v. Waldron, 5 T. R. 14.

No. 2747.

Book 4, tit. 7, chap. 2, sec. 1, § 3.

No. 2747.

grantee's right and possessory title are coëval, both being conferred by the instrument of conveyance; any tort, therefore, committed after the grant, is an injury to the grantee, upon which he may have an action. But when the real property granted is corporeal, his possession is not united to his rights, until he has entered upon the land, either in fact or in contemplation of law. And if, between the time of the grant and of his taking possession, an injury is committed against the premises, the grantor, and not the grantee, will be the proper person to bring the suit, because bare possession is not title sufficient to redress a possessory injury.

The absolute owner of personal property, when entitled to the possession, is in law considered as if actually possessed, although in fact he may not be so, according to the maxim that absolute property in the personalty draws to it the possession; (a) and in such case he is the proper person to bring the action.

But to this general rule there is an exception, which is the case where goods are consigned to a factor.(b)

§ 3. Of the number of plaintiffs for an injury.

2747. When an injury is committed against two or more persons, who have a joint legal interest in the property affected, they must, in general, join in the action, for when the damage to one is the same as to the other, they are jointly entitled to the damages which are to repair it, and this though the interest be several.(c) When only one loss has been sustained, only one satisfaction is due, and, as to this, the one has not a better claim than the other; of necessity, both must unite in claiming it.

(a) 2 Saund. 47, a, n. 1; Bac. Ab. Trover, C.

(b) Fowler v. Down, 1 B. & P. 44.

(c) Vide Jackson ex dem. Romun v. Sidney, 12 John. 185.

No. 2748.

Book 4, tit. 7, chap. 2, sec. 1, § 3, art. 1.

No. 2750.

But where the inconvenience to one is distinct from that of the other, their claims for remuneration must be separate, because what affects the one is matter of indifference to the other. It is not the act complained of, but its consequences, and this ought to be kept constantly in mind in choosing plaintiffs.

Art. 1.-Of actions for injuries to several persons by positive misfeasance.

2748. Injuries of this kind are, 1, to the person and personal rights; 2, to property; and, 3, to the relative rights.

1. Of injuries to the person and personal rights.

2749. When two persons are beaten with the same stroke, the act by which they are injured is one, but as the consequences of the act, and not the act itself, must be redressed, the injury is several, and the two cannot bring a joint action, because one does not share in the suffering of the other. And so if two are slandered by the same speech, as "You, Peter and Paul, murdered John," or where several are unlawfully imprisoned by the same act, each must bring his separate action.

2. Injuries to the joint property of several persons.

2750. When several persons are possessed jointly of real or personal property as joint tenants, tenants in common, or bare occupants, they are jointly aggrieved by a trespass or other injury to it. Thus it was held that tenants in common (a) are jointly injured by disturbing an incorporeal hereditament annexed to their land, upon the same principle that they are so to the land itself. (b) And, in the somewhat celebrated case of the Dippers at Tunbridge Wells, (c) it was

(a) Kielw. 55, Case n. 2.

(b) Hamon v. White, W. Jones, 142.
(c) Weller v. Baker, 2 Wils. 423.

No. 2751.

Book 4, tit. 7, chap. 2, sec. 1, § 3, art. 2.

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held that persons who had separate rights, but were entitled to joint profits, might maintain a joint action against one who caused a damage to those profits.(a) When partners are slandered in their trade, the injury is joint, because the means of acquiring property is the object impaired, and in those means all the partners are concerned. If, in addition to the general, one of the partners has sustained special damages, he may bring a separate action.

3. Of injuries to the relative rights of several persons.

2751. When two or more persons stand in the same relation toward another, and one has an action against a third person for an injury to his relative rights, the rest may join with him in such action, as where a servant, who was jointly engaged to several masters, was beaten, and all the masters have suffered loss, they may join, because all share the damages occasioned. But if the servant was in their separate employment, the actions are several.(b)

Art. 2.—Of injuries arising from neglect of public duty.

2752. When an injury arises from the neglect of a public duty, as for permitting an escape, if the party escaped was a prisoner at the suit of several jointly, all are jointly aggrieved, since the damage is common to all. So where two church wardens sued a mandamus to an officer to swear them in, and, on his making a false return, joined in an action against him, the joinder was held right, though it was objected that the office of one, not being the office of the other, neither was the injury done to one done to the other. But the court held that the injury was joint, because the false return had rendered useless a writ sued at their joint expense.(c)

(a) See Coryton v. Lithebye, 2 Saund. 112.

(b) Ham. on Part. 46.

(c) Ward v. Brampston, 3 Lev. 362; S. C. 3 Salk. 202.

No. 2753.

Book 4, tit. 7, chap. 2, sec. 1, § 4.

No. 2754.

Art. 3.-Consequence of a non-joinder, or misjoinder of parties.

2753. When a party who ought to have been joined as plaintiff, is omitted in an action ex delicto, the objection can be taken only by plea in abatement, or by way of apportionment of the damages on the trial. In an action of this nature, the defendant cannot, as in actions ex contractu, give evidence of the non-joinder for the purpose of defeating the action. (a) And, if one of several part owners of a chattel, sue alone for a tort, and recover damages, this will be no bar to a suit by the other; for, in the first action, the defendant ought to have pleaded the non-joinder in abatement.(b) When too many persons are joined as plaintiffs, and the objection appears on the record, it may be taken advantage of by demurrer, in arrest of judgment, or writ of error; if it do not appear on the record, the mistake may be a ground of non-suit on the trial, for the plaintiffs do not prove a right to what they claim, as some of them have no right at all.(c)

§ 4.-Cases where the injured party is dead.

2754. In case of contracts where the party who had a cause of action dies, his personal representatives have in general the right to sue and recover what was owing to him; but in the case of torts, when the action must be in form ex delicto, and the plea not guilty, the rule at common law was otherwise, it being a maxim that a personal action dies with the person actio personalis moritur cum persona. But the meaning of this rule must be somewhat restricted. In a large and extended sense, all actions, except those for the recovery of real property, may be called personal; this is not the meaning of the maxim. It

(a) 1 Saund. 291, g.

(b) Sedgworth v. Overend, 7 T. R. 279.
(c) Co. Litt. 197, b.

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