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relation to sheriffs, innkeepers, and common carriers, who are responsible for their agents.198

When an injury has been committed by an animal, the owner will be responsible if he knew of the animal's evil propensity and the injury has happened through his fault. 194

2771 When an injury arises from the execution of an authority in law, the wrong doer is liable, whether it be caused by executing a lawful writ in an unlawful manner, an illegal writ, from acting upon a groundless complaint, receiving as an officer a person as a prisoner who has been illegally taken, or aiding a legal authority.

An officer who executes a lawful writ in an unlawful way, though innocently, under the direction of his superior, will be liable for the injurious act; and if the plaintiff directed the manner of executing it, he will also be responsible. 196

The execution of the process of a court having jurisdiction of the parties and matter on which it is founded, and regular on its face, may be justified by an officer, because, although such process may be void, he is not allowed to judge of that, and may be punished for contempt if he do not execute it.197 But the plaintiff and his attorney are liable.19

A justice of the peace who causes one to be arrested criminally, when he has jurisdiction, will be safe if it does not appear that he acted knowingly in violation of law; as, where he issued a warrant of arrest without a previous oath. But although his process may be illegal, it will justify the constable, who cannot inquire into its illegality if the magistrate had jurisdiction.199

A jailer will be responsible for a false imprisonment, and may be sued for it if it appear upon the commitment that it is illegal.20

The sheriff may, in the execution of a lawful writ, call to his assistance the posse comitatus, that is, the aid of such citizens as may be requisite to enable him to execute such writ.201 And in such case, although the sheriff may be acting without authority, yet it would seem that any person obeying his mand, unless aware of that fact, will be protected.

2772. An action lies against one who commits a trespass or any injury to personal property, or for appropriating it to the party's use, as in the case of trover and conversion. And in all cases where he would be liable to an action for a trespass committed by his agent or servant to the person of another, he will be responsible for their acts, when committing an injury to the personal property of the plaintiff.

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193 Weed v. Panama R. R. Co., 17 N. Y. 362. See Hibbard v. New York, etc., R. R. Co., 15 N. Y. 455; Blackwall v. Wiswall, 24 Barb. N. Y. 355.

194 By the Roman law, when the master was sued for a wrong committed by his slave, or the owner for a trespass committed by his animal, he might abandon them to the person injured, and thereby save himself from further responsibility. Inst. 4, 9; Dig. 9, 1; Ib. 21, 1, 40. Similar provisions have been adopted in Louisiana. La. Code, Art. 180, 181, 2301.

195 Everett v. Herrin, 48 Me. 537;. Ewings v. Walker, 9 Gray, Mass. 95; Gilleland v. Rhoades, 34 Penn. St. 187.

198 See Menham v. Edmonson, 1 Bos. &. P. 369.

197 Mower v. Stickney, 5 Minn. 397; Dwinnells v. Boynton, 3 All. Mass. 310; Neth v. Crofut, 30 Conn. 580; Brainard v. Head, 15 La. Ann. 489; Bogert v. Phelps, 14 Wisc. 88; Slomer v. People, 25 Ill. 70. So where the statute under which a warrant was issued was subsequently repealed. Robinson v. Barrows, 48 Me. 186.

is Barker v. Braham, 3 Wils. 368; Young v. Bircher, 31 Mo. 136; McNeeley v. Hunton, 30 id. 332; Gibson v. Chillicothe Bank, 11 Ohio St. 311.

199 Outlaw v. Davis, 27 Ill. 467; Hetfield v. Tousley, 3 Iowa, 584; Keniston v. Little, 21 N. H. 318. See La Roe v. Roesser, 8 Mich. 537.

200 Or if the court has no jurisdiction. Patterson v. Prior, 18 Ind. 440. 201 Viner, Abr. Sheriff, B.

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With respect to real property a man may be sued for his misfeasance or malfeasance, as for obstructing ancient lights, neglect to repair fences, private ways, etc., when he is bound so to do. Such actions may be against the occupier of the

premises, and not the owner of the land, unless he covenanted to repair. 202 2773. When an injury arises in consequence of the neglect of a public duty, the person who filled the office in question is the party who is alone to be sued, for the duty was imposed upon him alone. But it is here to be observed that a judicial officer while acting within his jurisdiction is not liable to any action for any apparent neglect of his duty, nor for any mistake he may commit in the execution of his office.

A ministerial officer, who is one acting by the authority of his superior, may be sued for the abuse of the authority given him; and he is generally responsible for the acts of his deputies.

2774. When a party is required by the situation in which he is placed to perform cert in things, and he neglects to do so, by which an injury accrues to the plaintiff, he may in general bring an action for the redress of the wrong. The following cases exemplify this rule:

When premises are wasted, the party liable is he who stood in the relation of tenant to the plaintiff at the time. If, therefore, Primus lease to Secundus, and Secundus demise to Tertius, who wastes the tenement, case in the nature of waste lies by Primus against Secundus, not against Tertius; because Primus action being for a breach of private duty connected with a tenure, and no tenure subsisting between Primus and Tertius, no duty is owing from one to the other. If, however, Tertius' misfeasance is commissive, and not permissive, waste, Primus may sue him for injuring his reversionary estate, unless he has already sued or is suing Secundus.203

The occupant of a close, the owner of which is bound to maintain the fence which divides it from another, is liable to the neighboring landholder for damages sustained in consequence of the fence going to decay, whatever agreement he

may have made with a third person about repairing it.”

A person in possession of premises upon which a nuisance has been placed is liable, whether he raised it or not.245

2775. A common carrier and an innkeeper are insurers for the safety of the goods intrusted to them, and are, therefore, liable for any neglect or misconduct by which an injury accrues to them; and if they employ persons to assist them, they are responsible for their acts. A carrier, for example, must deliver the goods to their address; if he forward them by a porter, the latter is his agent,

} and he is liable for his acts, unless there is an express or implied agreement that he may do so.206

2776. It is a common principle of justice that no one can be answerable for an injury, unless it has been committed by his express or implied command, or by his own act. The assignee of an estate is not liable, therefore, for a nuisance, committed upon it before he became the owner; but if he continue the nuisance he may be sued for such continuance. In such case, however, there should be a request to remove the nuisance.2

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202 Payne v. Rogers, 2 H. Blackst. 350. See Bell v. Josselyn, 3 Gray, Mass. 309. 203 See Berry v. Heard,

Croke, Car. 242; Cudlop v. Rundall, 4 Mod. 9. Payne v. Rogers, 2 H. Blackst. 349. 206 Tenant v. Goldwin, 1 Salk. 360. See McDonough v. Gilman, 3 All. Mass. 264; Caldwell v. Gale, 11 Mich. 77; Brown ». Illius, 27 Conn. 84; Beckwith v. Griswold, 29 Barb. N. Y. 291 ; Owings v. Jones, 9 Md. 108; Draper v. Sperring, 11 C. B. N. s. 113.

Hyde v. The Trent and Mersey Nav. Company, 5 Term, 396.

Comyn, Dig. Nuisance, B; Caldweil v. Gale, 11 Mich. 77; Hubbard v. Russell, 24 Barb. N. Y.'404; Beavers v. Trimmer, 1 Dutch, N. J. 97; Brown v. Cayuga, etc. R. R. Co., 12 N. Y. 486.

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2777. Joint liabilities may arise for common injuries, for neglect of public duty, and for neglect of private obligations.

2778. When several persons join in an offence or injury, they may generally be sued jointly, or any number less than the whole may be sued, or each one may be sued separately.28 Each is liable for himself, because the entire damages sustained were occasioned by each, each sanctioning the acts of the others, so that by suing one alone, he is not charged beyond his just proportion. Any number less than the whole may be sued, because each is answerable for his companion's acts. Thus a joint action may be brought against several for an assault and battery, or for composing and publishing a libel.09

But to this rule that for a joint injury a joint action may be brought, there is an exception, namely, that no joint action can be maintained for a joint slander; this exception seems to proceed upon the ground that each man's slander is his own, and it cannot by any means be considered that of another. Although this exception appears to be fully established, yet it is difficult to see the reason of it; when one of several trespassers gives the blow, he is considered as acting for the others, and, if they acted jointly, they may be jointly sued; why not consider the speaker, when acting in concert with others, as the actor for the whole in uttering the words? The blow is no more that of the person who did not give it than the words are the words of him who only united with the other in an agreement that they should be spoken. In either case, upon principle, the maxim, qui facit per alium facit per se, ought to have its force. Such, however, is not the law. 2779. There is a distinction between mere personal actions for torts and such

a as concern real property. If a tenant in common be sued for a tort, for any thing respecting the land held in common, he may plead the tenancy in common in abatement.210

2780. When several officers join in their neglect of a public duty, or in doing an injurious act, for which they may be sued, they may be sued jointly or

And if carriers act together as partners, and injure a customer by neglecting their duty, as by losing his goods in their charge, they must be sued jointly.

2781. When the injury results from the neglect of a private obligation, as to repair a dividing fence, the rule, as far as respects strangers, seems to be that all occupying the land charged with the repair, whether as tenants or bare occupants, are liable jointly, each may be sued separately, or any number less than the whole may be made joint defendants, because a stranger cannot know the state of the property. So if a nuisance be upon the land, and the owner sells it, after which the nuisance is continued, the former owner and the purchaser may be jointly sued.213

2782. We have seen that when the injured party dies, it is a general rule that no action can be maintained by his executors for the mere personal injury done to him, the maxim in such cases being actio personalis moritur cum per8ona. The same rule prevails when the wrong doer dies; in general, no action lies against his personal representatives.

2783. If the wrong doer dies before judgment, there is no remedy for any

severally. 211

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208 Williams v. Sheldon, 10 Wend. N. Y. 654.

309 2 Saund. 117, a; Bacon, Abr. Actions in General, C; Harris v. Huntington, 2 Tyl. Vt. 129.

210 Low v. Mumford, 14 Johns. N. Y. 426; Sumner v. Tileston, 4 Pick. Mass. 309. See Converse v. Symmes, 10 Mass. 378.

211 Rich Sir Peter v. Pilkinton, Carth. 171.
113 Buddle v. Wilson, 6 Term, 369.
ns Hammond, Part. 88.
VOL. II.-N

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injury done to the person of the plaintiff; nor can an action be maintained against the executors of one who has broken his promise to marry.

2784. For an injury committed by a testator to personal property, no action can in general be sustained against his executor; though if the testator converted the property into money, assumpsit may be maintained against the executor; and if the property remains in specie in the hands of the latter, trover would lie against him, but not in his character of executor.

2785. When the injury is against real property, no action will in general lie against the executor of the wrong doer; though if trees or other parts of the freehold be taken or converted into money, assumpsit will lie against the personal representatives; or if the trees remain in specie, trover may be maintained against him.

2786. When there are several wrong doers and one dies, the action may be brought against the survivor, or any number of them the plaintiff may select, or against one only.

2787. The marriage of a woman changes her rights and liabilities so far that she cannot alone enforce the former, nor can she alone be sued for the latter; in general, her husband must be joined in actions by and against her.?

2788. When she commits a tort before marriage, the action must be against the husband and wife jointly.216 For torts committed by her during the coverture, as for slander, battery, and the like, the husband and wife must be joined ; 217 but they cannot be sued jointly for the slander uttered by both of them, because she cannot be made responsible for the slander uttered by her husband.

When the tort is joint, and she could be sued if she were a common person, then the action may be against them both jointly; as, where the husband and wife committed an assault and battery;2 or in such case the husband

may be sued alone. Trover may be supported against husband and wife for a conversion of goods before marriage, 29 and for a conversion by husband and wife, the husband may be sued alone.220

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M1 Hambly v. Trott, Cowp. 373; 1 Saund. 216, a.
215 Jillson v. Wilbur, 41 N. H. 106.
216 Bacon, Abr. Baron & Feme, L; Hauk v. Harman, 5 Binn. Penn. 43.

217 Matthews v. Fiestel, 2 E. D. Smith, N. Y. 90; Corn v. Brazelton, 2 Swan, Tenn. 273; Austin v. Wilson, 4 Cush. Mass. 273; Roadcap v. Sipe, 6 Gratt, Va. 213.

Roadcap v. Sipe, 6 Gratt. Va. 213. 2 Saund. 47 h, i.

220 2 Saund. 47 i. 98

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CHAPTER V.

PROCESS AND APPEARANCE.

2789. The proceedings in an action. 2790-2813. The process.

2790. The general nature of process.
2796–2813. The different kinds of process.

2797. The summons.
2798–2808. The capias.
2799-2801. Against whom a capias may issue.

2800. Absolute privilege from arrest.
2801. Limited privilege from arrest.
2802. For what causes a capias may issue.

2803. How a capias is to be executed.
2804–2807. Proceedings after arrest.

2805. Bail below, or bail to the sheriff.
2806. Special bail, or bail above.
2808. The return of the capias.
2809. The attachment.
2814. The appearance.

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2789. We have seen that when a legal right has been invaded the plaintiff is entitled to his remedy, for the redress of the injury, by an action; and having ascertained who are the persons who must be made both plaintiffs and defendants, our task now will be to consider the proceedings which usually take place in an action or suit at law. In the discussion of this subject it will be necessary to inquire what is the proper form of the process; what is an appearance; into the pleadings; the declaration; the defence; the pleas; the replications; the rejoinder and subsequent pleadings; the demurrers; the nature of a case stated; the trial; the arrest of judgment, new trial; the judgment; the proceedings in the nature of appeals; and the execution of the judgment.

2790. The writ or judicial means by which a defendant is brought in or called upon to answer to the complaint of the plaintiff is called process. It is so called because it proceeds, or issues forth, in order to bring the defendant into court, to answer the charge preferred against him.

2791 According to the English law, the king is theoretically the fountain of all justice, and he is represented in chancery by the lord chancellor. Before the courts can have any jurisdiction a writ must be issued out of chancery in the king's name, by which the defendant is commanded to satisfy the plaintiff, or else to appear in a court of law therein named and answer for his default; this is called the original writ, and is required to give the law court jurisdiction of the case; it is a species of commission authorizing such a court to try the cause. All the writs which are issued between the return of the original, until judgment has been obtained, are called mesne writs; and all which issue afterward are denominated final writs.

The original writ is issued under the great seal and tested, that is, it concludes

а

United States v. Noah, 1 Paine, C. C. 368.

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