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.

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 grantee's right and possessory title are coeval, 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; 155 and in such case he is the proper person to bring the

action.

It has been said formerly that there was an exception to this rule in a case where goods were consigned to a factor.156 This can, however, hardly be considered true, at least when so broadly stated, for the owner of goods may maintain an action for injury done them when in transit to a factor or other consignee.' And where the factor is a mere agent his possession may be regarded as that of the general owner, and a suit for a tort can be maintained by the latter, 158

157

But

2747. When an injury is done to property belonging to two or more joint owners, they must in general join in an action for damages. 159 Where there is an entire joint damage, they may join though their interests be several.160 where the interest and damage are several, though only one chattel may have been injured, or though the injuries may have been inflicted at the same time and by the same act, the parties must sever.161

2748. An injury to several persons by positive misfeasance may be either to the person and personal rights; to property; or to the relative 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

155 2 Saund. 47, a, n. 1; Bacon, Abr. Trover, C.

156 Fowler v. Down, 1 Bos. & P. 44.

157 Blanchard v. Page, 8 Gray, Mass. 291; before, 2707.

158 Aiken v. Buck, I Wend. Ñ. Y. 466; Root v. Chandler, 10 id. 110.

159

Sedgworth v. Overend, 7 Term, 279; Jackson v. Sidney, 12 Johns. N. Y. 185; Glover v. Austin, 6 Pick. Mass. 209; Boobier v. Boobier, 39 Me. 406; Oliver v. Walsh, 6 Cal. 456. 160 Coryton v. Lithebye, 2 Wms. Saund. 115; Weller v. Baker, 2 Wils. 423; Knight v. Lagh, 4 Bingh. 589; Brandon v. Scott, 40 Eng. L. & Eq. 105; Peck v. Elver, 3 Sandf. N. Y. 126; Chandler v. Howland, 7 Gray, Mass. 348.

161 Dig. 191; Bradley v. Blair, 17 Barb. N. Y. 480; Brandon v. Scott, 40 Eng. L. & Eq.

105.

where several are unlawfully imprisoned by the same act, each must bring his separate action.

164 it

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 162 are jointly injured by disturbing an incorporeal hereditament annexed to their land, upon the same principle that they are so to the land itself.163 And, in the somewhat celebrated case of the Dippers at Tunbridge Wells," was 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." 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 damages, one of the partners has sustained special damages, he may bring a separate action.

165

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.166

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.167

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.168 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.169

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.170

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

162 Keilw. 55, Case n, 2.

164 Weller v. Baker, 2 Wils. 423.

166 Hammond, Part. 46.

167 Ward v. Brampston, 3 Lev. 362;

169 1 Saund. 291, g.

170 Coke, Litt. 197, b.

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 extends to all wrongs attended with actual force, whether they affect the person or property; and to all injuries to the person only, without actual force.

2755. When the wrong is altogether personal, as where the deceased has been injured by assault, battery, false imprisonment, libel, slander, or otherwise, no action can be supported by his personal representatives. This rule appears to have been adopted for the purpose of preventing actions where the principal object would have been the gratification of revengeful feelings. Though a promise of marriage may be considered as a contract, yet it is so far personal that no action can be maintained by the executor of the promisee for a breach of it, unless perhaps the testator sustained special damages. 172

2756. Where the injury was done to personal property, and either the wrong doer or the party injured died, at common law there was no remedy by or against the personal representative, when the action must have been in form ex delicto, and the plea not guilty.173 But if any contract can be implied, the executor of the injured party may bring a suit and recover damages; as, if the wrong doer convert goods into money, an action of assumpsit may be brought against him by the executor.174

By statute of the English king 4 Edw. III, c. 7, an action is given to an executor for an injury done to the personal property of his testator in his lifetime; and this right was extended to the executor of an executor, by statute of 25 Edw. III, c. 5; and by the 31 Edw. III, c. 11, administrators have the same remedy as executors. The principles of these statutes have been adopted by our courts as a part of the common law.

2757. No personal representative can support an action arising ex delicto for any injury to real property, for the statutes just mentioned have been confined in their operation to injuries to personal property. An executor cannot, therefore, maintain an action of trespass quare clausum fregit,175 nor merely for cutting down trees, or committing other waste in the lifetime of the testator.176

2758. When several persons were jointly interested in the property injured, and one of them is dead, the action ought to be in the name of the survivor, and the executor of the deceased cannot be joined, nor can he sue separately.

If one of several plaintiffs in an action, in form ex delicto, dies pending the action, the suit does not abate, and the survivor may prosecute it to judgment.177 2759. For an injury to the person or personal property of her husband, the wife cannot sue alone, nor can she join him, for she has no legal interest in either.178 She may join him, it is true, when they have been jointly maliciously prosecuted, but this is because she herself had rights which were invaded; but in this case the husband, if he will, may sue alone.179

2760. For injuries committed before marriage, either to the person, personal or real property of the wife, when the cause of action would survive to the wife, she must join in the action.

171 Chamberlain v. Williamson, 2 M. & S. 408. See Latimore v. Simmons, 13 Serg. & R. Penn. 183; Stebbins v. Palmer, 1 Pick. Mass. 71.

172 Latimore v. Simmons, 13 Serg. & R. Penn. 185.

173 Pitts v. Hale, 3 Mass. 321; Stetson v. Kempton, 13 Mass. 272; Wilbur v. Gilmore, 21 Pick. Mass. 200.

174 Middleton v. Robinson, 1 Bay, So. C. 58.

175 In Connecticut a contrary rule has been adopted. Griswold v. Brown, 1 Day, Conn.

180.

176 Mason v. Dixon, W. Jones, 174.

177 2 Saund. 72, i; Rex v. Collector of Customs, 2 Maule & S. 225.

178 Arundel v. Short, Croke, Eliz. 133; Ayling v. Whicher, 6 Ad. & E. 259.

179 Comyn, Dig. Baron et Feme, X.

For injuries committed before coverture to the property of the wife, held by her in alieno jure, the wife must always be joined; as, for a trespass to property held by the wife as executrix, when committed before marriage.

2761. When a wrong is committed against the person of the wife during coverture, as by beating her person, or slandering her reputation, or by a malicious prosecution, she cannot sue alone, the suit must be by herself and her husband, for in that case the right to damages will survive to the wife. But when the injury to the wife deprives the husband for any time of her company or assistance, or if she be maliciously indicted or imprisoned, and the husband is put to expense on those accounts, he may bring a separate action in his own name for these consequential injuries, which are, indeed, wrongs done to himself alone,180 and for this reason he may, in the same action, proceed for a battery committed upon himself. And whenever, on account of an injury to the wife, he has sustained special damages, he may bring a separate action.

2762. For an injury during coverture to the wife's personal property not reduced to possession, in fact or in law, by the husband, the husband and the wife must join; and so in an action for disturbing a private office or employment filled by the wife alone.181

When the wrong committed toward the wife's property had its inception before marriage, but was consummated after, the husband and wife may join, or the husband may sue alone; as, in case of trover before marriage and conversion afterward, or of rent due before marriage and a rescue afterward. For the same reason, it is the better opinion that the wife must be joined in replevin for her goods taken while sole, though it is said in this case the husband may sue alone." 182

2763. For the recovery of the land of the wife, and in a writ of waste to it, the husband and wife must join. But when the action is merely for the recovery of damages to the land during coverture, the husband may sue alone, or the wife may be joined.183

2764. When a feme covert sues in auter droit, as, for example, as executrix, she and her husband must join.184

2765. When the wife dies the surviving husband may maintain an action for an injury to the land of the wife committed during the coverture.185 But his remedy for injuries to her person does not survive.1

186

2766. When the husband dies and the wife survives, any action for a tort committed to her, or to her personal or real property before marriage, or to her personal or real estate during the coverture, will survive to her.

2767. In considering the matter of defendants in actions ex delicto, it is convenient to consider liabilities as between the original parties, in case of assignment, the number of persons liable, the effect of the death of the wrong doer, and the effect of the marriage of the wrong doer.

The injuries committed by an individual may be classified as positive wrongs or common injuries, injuries arising from a breach of public duty, injuries which are the effect of an omission of some private obligation, and injuries consequent upon a breach of contract.

180 Rogers v. Smith, 17 Ind. 323; Tibb v. Brown, 2 Grant, Cas. Penn. 39; Johnson v. Dicken, 25 Mo. 580; McKinney v. Western Stage Co. 4 Iowa, 420; Gazynski v. Colburn, 11 Cush. Mass. 10.

181 Weller v. Baker, 2 Wils. 423.

182 Watterman v. Matteson, 4 R. I. 539. It is even held that in replevin for goods of the wife, taken during coverture, the husband and wife should join. Brown v. Fifield, 4 Mich. 322.

183 Bellars v. McGinnis, 17 Ind. 64.

184 Wentworth, Off. Ex. 207; Buckley v. Collier, Salk. 114.

185 Comyn, Dig. Baron & Feme, Z.

186 See Long v. Morrison, 14 Ind. 99.

2768. Positive wrongs may be either to the person, or personal rights, or to property. All natural persons who have legal capacity to sue are liable to be sued for tortious acts unconnected with or in disaffirmance of a contract; and, therefore, an infant may be sued like an adult for torts committed by him, as for slanders, assaults, batteries, trespasses, and the like. But a slave, who is not in general considered a person, but a thing, cannot be sued for a tort, as an action against him would be wholly fruitless, and though his master may in some cases be liable for the injury he has committed to property, he cannot be made responsible for his slander.

187

2769. The person doing the injury is the party liable, and whether he commits the wrong by his own hands or those of another, he is the one who does the injury, for he who acts by another acts himself: qui facit per alium facit per But there are some cases where it is not so easy to make a choice of parties; as, when one man causes an injury to another at the instigation of a third person, or where the injury arises from executing an authority in law, whether the same be real or fictitious.

se.

2770. When without intention one man prejudices another by his wrongful act at the suggestion of a third, if he had the choice whether to interfere or not, he has no excuse; if, therefore, a servant by the command of his master injures another man, the latter may maintain an action against him.188 But to render him thus responsible, he must be active in doing the mischief, and not be a mere instrument in the hands of another, for he cannot be said to commit an injury if he had no knowledge of it. A servant who should carry a sealed libellous letter to a printer to be published, not knowing its contents, would not be guilty of the publication of the libel; and a servant who delivers to the sheriff an illegal writ inclosed in a letter, not knowing its contents, is not answerable to him against whom it is executed.189 But when the agent knew, or ought to have known, that he was forwarding the illegal affair, he is liable, though he may not have been the immediate actor in the matter; as, where an attorney at the request of his client issued an illegal writ, for example, an execution before he had a judgment.190

A master or principal is liable, in some cases, for the acts of his servant or agent, although he did not know anything about them; he is answerable for their negligence or unskilfulness while acting in the course of his employ.191 But he is not answerable for the injury if the servant at the time wilfully committed it on his own account; as, if he wilfully drove his carriage against another.192 An exception to this rule is made on the ground of public policy in

187 Gilbert v. Beach, 5 Bosw. N. Y. 445. Some cases of much nicety arise where torts are committed by persons employed in acts which are to be beneficial to an owner of real estate, in distinguishing whether the party committing the tort is the servant or agent of the owner or of an intermediate contractor. See Gilbert v. Beach, 5 Bosw. N. Y. 445; Hilliard v. Richardson, 3 Gray, Mass. 349; Stone v. Codman, 15 Pick. Mass. 297; Lowell v. Boston Railroad, 23 id. 24; Blake v. Ferris, 1 N. Y. 48; Stevens v. Armstrong, 2 id. 435; Batty v. Duxbury, 24 Vt. 155; Wiswall v. Brinson, 10 Ired. No. C. 554; De Forrest v. Wright, 2 Mich. 368; Lesher v. Wabash Nav. Co., 14 Ill. 85; Cincinnati v. Stone, 5 Ohio St. 38; Clark v. Vermont R. R. Co., 28 Vt. 103; Bush v. Steinman, 1 Bos. & P. 404; Burgess v. Gray, 1 C. B. 578; Peachey v. Rowland, 13 id. 182.

188 Bennett v. Ives, 30 Conn. 329.

189 Coles v. Wright, 4 Taunt. 198.

190 See Barker v. Braham, 3 Wils. 368.

191 Scammon v. Chicago, 25 Ill. 424; Althorpe v. Wolfe, 22 N. Y. 355; Wolfe v. Mersereau, 4 Du. N. Y. 473; Luttrell v. Hazen, 3 Sneed, Term, 20. See Sloan v. State, 8 Ind. 310.

192 Weldon v. Harlem R. R. Co., 5 Bosw. N. Y. 576; Snodgrass v. Bradley, 2 Grant, Cas. Penn. 43; Wesson v. Seabord, etc., R. R. Co., 4 Jones, No. Č. 379; Lyons v. Martin, 8 Ad. & E. 512; Lamb v. Palk, 9 Carr. & P. 629; McManus v. Crickett, 1 East, 106.