of a ship, for instance, or the furnishing of a house; and as to which the executors of any party dying before the work is completed are, by agreement, to stand in the place of the party dying; in such a case, though the legal remedy of the party employed would be solely against the survivors, yet the law will imply a contract on the part of the deceased contractor, that his executors should pay their proportion of the price of the article to be furnished.(g). 242. The action of debt on simple contract, except for rent,(h) did not formerly lie against a personal representative for a debt contracted by the deceased,(i) unless the undertaking to pay originated with the representative;(k) and the reason of this was, that personal representatives, when charged for the debt of the deceased, were not admitted to wage their law, and consequently were deprived of a legal defence, which the deceased himself might have made use of.(1) But this reason did not apply to the action of assumpsit, which, therefore, might always have been brought;(m) and the executors of a sheriff, who had levied under a fi. fa., and died *without paying over the money, but after it had been received, were held liable in the action of debt.(n) And now, by stat. 3 & 4 [*195] Will. 4, c. 42, s. 13, wager of law is abolished, and by s. 14 it is enacted, that an action of debt on simple contract shall be maintainable in any court, of common law against an executor or administrator. 243. In suing an executor or administrator as such, (0) causes of action on which he would be liable personally, cannot be joined with others on which liability is incurred by him in his representative capacity alone. In the former class are comprised, a bill of exchange indorsed by him,(p) or a promissory note in which he promises, in his representative character, to pay "with interest on demand," (q) or a submission to arbitration, whereby he admits assets ;(r) so, a count for money lent to, or had and received by him as executor or administrator,(s) or for work and labour performed, and materials supplied, for the funeral of the deceased,(t) would *entail a personal liability: and in all these instances, the judgment would [*196] (g) Per Alderson, B., delivering the judgment of the Court, Prior v. Hembrow, 8 M. & W. 889, 890.* (h) Norwood v. Read, Plowd. 180. See 1 Selw. N. P. 10th ed. 600; Williams's Executors, 3rd ed. 1513. 1351. (i) Barry v. Robinson, 1 Bos. & Pul. N. R. 293. Except in the Exchequer, where wager of law was not allowed. 1 Chitt. & Hulme, Statutes, 24 n. (l). () Riddell v. Sutton, 5 Bing. 206.1 (1) 3 Bl. Com. 16th ed. 347, and n. (12) ; 2 Selw. N. P. 10th ed. 796. (m) 2 Selw. N. P. 10th ed. 797. (n) Perkinson v. Gilford, Cro. Car. 539. (0) In an action against A. and B. as executors, A. cannot plead that B. is not an executor. Atkins v. Humphrey, 15 L. J., N. S., C. P. 120. Plea of Ne unques executor, Wood v. Kerry, Id. 122; Scott v. Wedlake, 14 L. J., N. S., Q. B. 359. As to legacies under £20, see also 9 & 10 Vict. c. 95, s. 65. (p) King v. Thom, 1 T. R. 489. (9) Childs v. Monins, 2 B. & B. 460.m (r) Riddell v. Sutton, 5 Bing. 200," and cases there cited. See Dowse v. Coxe, 3 Bing. 20; S. C., but not S. P., 6 B. & C. 255.P (8) Ashby v. Ashby, 7 B. & C. 444; Waite v. Gale, 14 L. J., N. S., Q. B., 212 ; Blakesley v. Smallwood, 15 Id., Q. B., 185; Churchill v. Bertrand, 3 Q. B. 568; Jennings v. New. man, 4 T. R. 347; Rose v. Bowler, 1 H. Bla. 108; Brigden v. Parkes, 2 B. & P. 424 ; Per Alderson, B., Corner v. Shew, 3 M. & W. 351.* (t) Corner v. Shew, 3 M. & W. 350. 356. 'Eng. Com. Law Reps. 15. Id. 6. "Id. 15. Id. 11. PId. 13. Id. 14. Id. 43. *Reprinted by T. & J. W. J. at $2.50 per vol. be de bonis propriis; whereas, if the personal representative be liable às such, the judgment must de bonis testatoris.(u) But an executor may, it seems, be sued in that character, for money paid for his use ;(x) and in an action against an administrator on promises of the intestate, the declaration may include an account stated with the administrator as such, of money due from the intestate, for, on this, a personal liability would not attach.(y) The Statute of Frauds enacts, that, in order to charge an executor or administrator upon any special promise to answer damages out of his own estate, the agreement on which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged, or some other person thereunto by him lawfully authorized; and it is further necessary, that there be some new and sufficient consideration for such such promise.(z) 244. Although, in general, all the executors must be sued jointly, since they have a joint and entire interest in, and authority over, the goods of the testator, (a) yet it is unnecessary to join as defendants such as have not administered to the will ; and in pleading the non-joinder *of a co-ex[*197] executor as defendant, an averment must be made, that he has taken upon himself administration.(b) It may be added, that, although a party declared against as executor may plead that he is not such, yet, as the form of declaring against an executor de son tort is the same as that of declaring against a rightful executor, this plea will not succeed if the defendant has in any way intermeddled with the estate of the deceased. (c) But an executor de son tort need not be joined as a co-defendant with the rightful executor, and cannot be so joined with a lawful administrator. (d) If one of several executors, sued jointly, be an infant, he must defend by guardian.(e) Where there are several administrators to the intestate's estate, they must, like executors, be sued jointly ;(g) and in case of the death of a co-executor or co-administrator, the survivors are the parties against whom the action must be brought, for the interest is joint and entire.(h) On the death of the surviving executor, if testate, the action must be brought against his executor; if intestate, the administrator de bonis non of the original testator is the proper party to be sued, as also on the death of the administrator of the orignal intestate.(i) (u) 2 Wms. Saund. 117 d, and cases, supra. (x) Ashby v. Ashby, 7 B. & C. 444;s Per Lord Abinger, C. B., 3 M. & W. 353. (y) Secar v. Atkinson, 1 H. Bla. 102; Corner v. Shew, 3 M. & W. 350; Ashby v. Ashby, 7 B. & C. 444.5 (z) 29 Car. 2, c. 3, s. 4; 1 Wms. Saund. 211, n. (2.) (a) Com. Dig. Administration, (B. 12), Pleader, (2 D. 6); judgment, Nation v. Tozer, 1 Cr. M. & R. 174; and see Gleadow v. Atkin, 2 Cr. & J. 548; Douglas v. Forrest, 4 Bing. 704.t (b) Swallow v. Emberson, 1 Lev. 161; Per Grose, J., Rawlinson v. Shaw, 3 T. R. 560. See the form, Chitt. jun. Pleading, 200. (c) 1 Wms. Saund, 265, n. (2) ; 2 Bla. Com. 507; Chitt. jun. Pleading, 295, n. (1) (d) Com. Dig. Administrator, (C. 3), Abatement, (F. 10.) (e) Frescobaldi v. Kinaston, Stra. 783. (g) Com. Dig. Administration, (B. 12), Abatement, (F. 10.) Eng. Com. Law Reps. 14. Id. 15. *PART III. PLAINTIFFS IN ACTIONS EX DELICTO. CHAPTER I. [*198] GENERAL RULES. General rule, how applicable in the different Forms of Actions ex Delicto, ss. 245-255. Rules as to the Joinder or severance of Plaintiffs, ss. 256-259. Assignment of Remedy for a Tort, s. 260. 245. THE rule of most general application being, that, in actions ex delicto, he in whom the legal right or property was vested, and who has consequently sustained the injury, is the proper party to call for compensation from the wrong-doer, (a) it seems desirable to consider how this rule applies in different forms of action ex delicto. In the action of ejectment, which is for trying the right to property, the demise must be laid in the name of the party legally entitled; a mere equitable title or beneficial interest, is not sufficient to support it.(b) Ejectment, therefore, lies against an executor to recover a specific chattel bequeathed, after his assent to the bequest, but not before, for by such assent the property vested in the legatee.(c) So, this action may be maintained by a devisee, (d) [*199] mortgagee, (e) or grantee of a rent-charge who enters and holds rents in satisfaction under a proviso in the grant, (g) and by a personal representative,(h) or a provisional assignee ;(i) for in all these parties the legal estate is vested.(k) There are also cases in which an ejectment may be maintained on a title, which, though bad as against one particular individual, is valid as against all others; as, if a copyholder leases for years, without license of the lord or custom authorizing such lease, the lessee has nevertheless a title against every one but the lord, and may bring ejectment. (1) The action for mesne profits may be brought either in the name of the nominal or real plaintiff in ejectment; and so may an action for an escape, the defendant having been in execution for the mesne profits so recovered.(m) (a) See per Lord Kenyon, C. J., Dawes v. Peck, 8 T. R. 332. (b) Goodtitle v. Jones, 7 T. R. 50; Doe d. Hodsden v. Staple, 2 T. R. 684. 696; Per Lord Kenyon, C. J., Doe d. Reade v. Reade, 8 T. R. 122; ante, s. 2. As to ejectment by joint tenants, &c., ante, ss. 30-34; by mortgagor and mortgagee, ss. 41-45. (c) Doe v. Guy, 3 East, 120. (d) Co. Litt. 240, b. (e) See 2 Bla. Com. 158; Smartle v. Williams, 1 Salk. 245. (g) Jemott v. Cowley, 1 Saund. R. 112. (h) Com. Dig. Administration, (B. 13.) (i) Doe d. Clark v. Spencer, 3 Bing. 203; Doe d. Spencer v. Clark, 3 Bing. 370." See Doe v. Andrews, 4 Bing. 348;* 1 & 2 Vict. c. 110, s. 37. (k) See other instances, 2 Selw. N. P. 10th ed. 689. (1) Doe d. Tresidder v. Tresidder, 1 A. & E., N. S. 416. But the assignee of a lease, rendered void by the death of tenant in tail, cannot maintain covenant against the representatives of the latter, Andrew v. Pearce, 1 B. & P., N. R. 158. (m) Doe v. Jones, 2 M. & S. 473; Aslin v. Parkin, 2 Burr. 665. "Eng. Com. Law Reps. 11. Id. 13. Id. 41. *246. To sustain trespass quare clausum fregit, mere possession, [*200] without allegation of title, is sufficient, as against persons who have no title at all, and who are mere wrong-doers.(n) Hence, one in possession under a void lease may bring trespass, even though on such a demise, an ejectment could not have been maintained, for the latter remedy is founded on title.(0) But possession is essential; and therefore the party having the right of entry on land must acquire lawful possession by entry in order to maintain trespass against a wrongful occupant who continues upon the land;(p) as, in the case of a disseisee, who, although he may sue the disseisor for the original tort, cannot maintain trespass against him for the wrongful continuance in possession (unless his estate be determined so that he cannot re-enter,) or against a stranger in respect of a trespass after the disseisin, without re-entry on the land.(q) So, a lessor being out of possession, or a lessee before entry, cannot *maintain trespass; [*201] nor can a mortgagee who had not entered, his right so to do not having accrued.(r) 247. Where the possession is for a limited period, and for a special purpose, trespass will lie; as, at suit of the contractors for making a canal, who were in possession for that purpose, and had erected a dam upon the locus in quo with their own materials, and with the consent of the owner of the soil.(s) And as against a wrongdoer, a wrongful possession will support trespass ;(t) though a party wrongfully holding possession of land cannot treat the rightful owner, who enters on the land, as a trespasser.(u) 248. But the possession must be exclusive,(x)—and therefore case, and not trespass, is the proper remedy for disturbing the plaintiff in the enjoyment of a pew annexed to his house; (y) though, if the pew itself which the party had put up be broken, trespass would lie ;(2) so, case is the proper form of action for disturbing plaintiff's right of common, (a) or common of estovers, (b) *fishery, or turbary,(c) or his interest in a market, [*202] watercourse, way, or other easement. (d) But trespass will lie at (n) Harper v. Charlesworth, 4 B. & C. 591;a_Dent v. Oliver, Cro. Jac. 122; Holmes v. Newlands, 11 A. & E. 44;b Cary v. Holt, 11 East, 70, n. (4); Chambers v. Donaldson, 11 East, 65; Harker v. Birkbeck, 3 Burr. 1563; Heath v. Milward, 2 Bing. N. C. 98;* Carnaby v. Welby, 8 A. & E. 872;d Matson v. Cook, 4 Bing. N. C. 392; see Wild v. Holt, 9 M. & W. 672. (0) Graham v. Peat, 1 East, 244. 246. (p) Com. Dig. Trespass, (B. 3); Butcher v. Butcher, 7 B. & C. 399 ;f Hey v. Moorhouse, 6. Bing. N. C. 57; Duke of Newcastle v. Clark, 2 B. Moore, 666; Lutwich v. Mitton, Cro. Jac. 604. By induction the parson is put in possession of the glebe land without having taken actual possession, Bulwer v. Bulwer, 2 B. & Ald. 470. (9) Com. Dig. Trespass, (B. 2, 3); Holcomb v. Rawlyns, Cro. Eliz. 540; Liford's case, 11 Rep. 51 a, cited 6 Bing. N. C. 57.5 (r) Wheeler v. Mountefiore, 11 Law Journ., N. S., Q. B. 34. (8) Dyson v. Collick, 5 B. & Ald. 600. See Welden v. Bridgewater, Cro. Eliz. 421. (t) Per Curiam, Dyson v. Collick, 5 B. & Ald. 603.h (u) Taunton v. Costar, 7 T. R. 431; Butcher v. Butcher, 7 B. & C. 402.i (x) Revett v. Brown, 5 Bing. 7;k Greathead v. Morley, 3 Scott, N. R. 538. (y) Stocks v. Booth, 1 T. R. 428. 430; Mainwaring v. Giles, 5 B. & Ald. 356.h (2) Per Best, C. J., 3 Bing. 138,' citing Dawtrie v. Dee, Palm. 46. (a) 1 Selw. N. P. 10th ed. 422. (b) Ashmead v. Ranger, 12 Mod. 380. (c) Smith v. Kemp, 2 Salk. 637; Per Wilmot, J., Wilson v. Mackreth, 3 Burr. 1826. (d) Chitt. jun. Pl. 497, n. (a), and the forms, Id. 610, et seq. See Smith v. Kemp, 2 Salk. 637; Mason v. Hill, 3 B. & Ad. 304;m S. C. 5 B. & Ad. 1." Eng. Com. Law Reps. 10. Id. 39. cId. 29. dId. 35. bId. 7. ¡Id. 14. Id. 15. 'Id. 11. "Id. 23. Id. 33. fId. 14. Id. 37. "Id. 27. suit of a party who has an exclusive right or interest in land, the soil of which belongs to another; as the exclusive right to cut turf in a waste belonging to the lord of the manor.(e) So, it was held, that a person entitled to the exclusive enjoyment of a growing crop, during the proper period of its growth, and until it was cut and carried away, might maintain trespass in respect of such exclusive right;(g) and one entitled exclusively to the vesture of land, that is, to the corn, grass, underwood, and the like, may have an action of trespass qu. cl. fr.(h) It must be observed, also, that where the party in occupation is not the owner of the soil, although he is the proper plaintiff in an action of trespass, or on the case for the injury to the possession; yet there is also a remedy in case by the reversioner, for the consequential damage, if any, to his reversionary interest ;(i) and recovery of damages for the erection of a nuisance, whether by the party in possession,(k) or by *the reversioner,(l) will be no bar to another action for continuing the same nuisance. Lastly we may observe, that as mere possession is sufficient to maintain trespass qu. cl. fr. against any one who cannot shew a better title, if issue be joined on a plea denying plaintiff's property in the close, his case will be established by proof of possession, and the defendant cannot under the above plea offer evidence of title in himself.(m) [*203] 249. To entitle a man to bring trespass for an injury to personal property, he must, at the time when the act was done which constitutes the trespass, either have the actual possession in him of the thing which is the object of the trespass, or else he must have a constructive possession in respect of the right being actually vested in him;(n) therefore the lord should sue in trespass for an estray or wreck taken by a stranger before seizure by the lord, for the right is in the latter, and a constructive possession, in respect of the thing being in the manor of which he is lord. (o) So, an executor has the right immediately on the death of the testator; and the right draws after it a constructive possession.(p) 250. Where chattels are let under a lease or agreement, the possession is in the lessee, and he should sue in trespass for their seizure.(g) So, where chattels *are mortgaged, but by the terms of the mortgage deed the [*204] mortgagee is precluded from taking possession before a certain day, the mortgagor, prior to such day, will be the proper party to sue for a trespass to the chattels which have been mortgaged. Accordingly, where F. demised a messuage to W. for a term of years by way of mortgage, and by (r) Per Curiam, Wilson v. Mackreth, 3 Burr. 1824; Weldon v. Bridgewater, Cro. Eliz. 421. (g) Crosby v. Wadsworth, 6 East, 602; Co. Litt. 4, b. See Welsh v. Hall, cited, 2 Selw. N. P. 10th ed. 1313. (k) Holmes v. Wilson, 10 A. & E. 503,0 and cases there cited. (4) Shadwell v. Hutchinson, 2 B. & Ad. 97. See Fay v. Prentice, 1 C. B. 828. (m) Whittington v. Boxall, 5 Q. B. 139,q (n) Per Ashhurst, J., Smith v. Milles, 1 T. R. 480; Young v. Hickens, 6 Q. B. 606; Hurrell v. Ellis, 15 L. J., N. S., C. P. 18. (0) 1 T. R. 480. (p) Id. (9) Ward v. Macauley, 4 T. R. 489, recognised Gordon v. Harper, 8 T. R. 11. Eng. Com. Law Reps. 37. PId. 22. Id. 48. |