« PreviousContinue »
cerned in point of interest.(k) So if a false return be made by the sheriff to the prejudice of several, by which they are put to a charge, they may join in an action ;(?) and, if a charter be inade to four, and one of them bails it, the bailor may sue alone in detinue for its recovery.(m)
*258. Thirdly, where the interest affected and the damage sustained are respectively several, there must be separate actions at
[*211] suit of the parties injured; therefore, if the goods of A. and B., the separate property of each, be unlawfully distrained, they cannot join in an action of replevin.(u) So, in actions for torts to the person, the parties aggrieved must sue separately, as for assault and battery, or in case for slander or false imprisonment.(0) Where, however, persons are in a trading partnership, as bankers, or otherwise, they should sue jointly for damage resulting to the firm from words spoken,(p) or from a libel against them in respect of their business, though in such joint action damages cannot be given for the injury done to the private feelings of the members of the firm, but this separate damage must, according to the rule above stated, be sued for by the individual who has sustained it.(9) In like manner, joint-tenants or parceners may join for slander of the title to their estate ; and two persons may bring a joint action for maliciously holding them to bail, if the complaint in the declaration be confined to the expenses jointly incurred in obtaining their *liberty, though in respect of the imprisonment, and the personal inconvenience resulting therefrom, they should sue
[*212] separately :(r) and where an action on the case for maintenance was brought by several jointly, who had been the defendants in the previous action, and had employed one attorney, to the amount of whose bill of costs the verdict was confined, such action was held maintainable, the interest in the expenses of the defence being a joint and not a several damage.(8)
259. If one of several persons who are jointly interested dies, the remedy for an injury to the joint interest survives, and the personal representatives of the deceased must not be joined,—the rule being, as in the case of a partnership or community of interest, that the remedy survives, but not the right.(1) Where the right of action is joint and several, or several only, in case of death the personal representatives of the deceased
(k) Weller v. Baker, 2 Wils. 423 ; 2 Wms. Saund. 116 a, n. (2). (1) Com. Dig. Abatement, (E. 12).
(m) Id. (n) Co Litt. 145, b.; 2 Selw. N. P. 10th ed. 1185. (O) 2 Wms. Saund. 117 a; Smith v. Cooker, Cro. Car. 512; Worsley v. Charnock, Cro. Eliz. 472; Bac. Ab. Actions in General (C).
(p) Robinson v. Marchant, 15 L. J., N. S., Q. B. 135.
(aSee per Tindal, C. J., Williams v. Beaumont, 10 Bing. 270;" Harrison v. Beving. ton, 8 C. & P. 708. 713,* n. (a); Forster v. Lawson, 3 Bing. 452. 456. 458;y Gregory v. Williams, 1 Car. & K. 568;a Haythorn v. Lawson, 3 C. & P. 196;b Cooke v. Batchelor, 3 B. & P. 150. See Maitland v. Goldney, 2 East, 426; Solomons v. Medex, 1 Stark. N. P. C. 191. As to actions of tort by a Corporation, see p. 228, note.
(r) Forster v. Lawson, 3 Bing. 455, 456;d Haythorn v. Lawson, 3 C. & P. 196;* Bar. ratt v. Collins, 10 Moore, 446. 450; as to which case, see Pechell v. Watson, 8 M. & W. 696. 702.
(8) Pechell v. Watson, 8 M. & W.691; Ward v. Brampston, 3 Lev. 362; Green v. Pope, 1 Lord Raym. 125.
(t) Per Dampier, J., Rex v. Collector of Customs, 2 M. & S. 225; Co. Litt. 182, a. oEng. Com. Law Reps. 25. Id. 34. Id. 13. «Id. 47. bId. 14. Id. 2. Id. 13.
may sue, provided the rule actio personalis moritur cum personâ does not apply.(u)
260. It will be collected from the preceding observations that the party, whose legal interest has been affected, is the proper plaintiff in suing for a tort, and, consequently, the right of action for an injury, either to the person or to property, cannot, in any case, be assigned. But the assignee of pro
perty must sue *for any tort committed subsequently to the assign[*213]
ment, as in detinue for title deeds, though delivered by the assignor to a third party previously to the assignment of the estate : for, when the action was commenced, the property was in the assignee ;(y) and the same rule applies in trover,(z) and in case for the infringement of a copyright,(a) the vendee of goods in the former case, and the assignee of the copyright in the latter, being the proper parties to sue for any injury to their respective property. On the death of the party injured we shall see that the remedy, if any, vests in his personal representatives; and that the heir or devisee cannot maintain an action for a tort committed in the lifetime of the ancestor or devisor,(6) unless it be continuing as a nuisance, in which case either the heir or devisee, it seems, may sue for the injury incurred subsequently to the death of the ancestor or devisor.(c)
1. LANDLORD AND TENANT, ss. 261-270.
1.-LANDLORD AND TENANT,
Right of the Landlord to sue, s. 261. Where the Parties interested in the demised
Premises are Joint-Tenants, Coparceners, or Tenants in Common, ss. 262–266. Who should sue after Assignment of the Reversion, s. 267. Right of the Tenant to sueChange of tenancy, &c., ss. 268—270.
261. For a tortious act done to a demised estate, both the landlord and tenant have remedies which are separate and distinct in kind, the former being entitled to sue for injury, if any, to the reversion, and the latter for the damage to the estate in possession.(aa) In order, however, to maintain an action on the case at suit of the landlord, the declaration must state an injury of such a permanent nature as to be necessarily injurious to his reversion, or must allege the injury declared on to have been done to the damage
(u) Broom's Legal Maxims, 400.
(2) See Pattison v. Robinson, 5 M. & S. 105; Friday v. Hart, cited Chitt. Plead. 5th ed. 77. (a) Cumberland v. Planché, 1 A. & E. 580;Power v. Walker, 3 M. & S. 7. (6) 2 Inst. 305; 2 Wms. Saund. 252 a, n. 7. (c) Some v. Barwish, Cro. Jac. 231; post, s. 267.
(na) Bedingfield v. Onslow, 3 Lev. 209; Holt, N. P.C, 545, n. ;h post, s. 268. See Val. lance v. Savage, 7 Bing. 595.
(Eng. Com. Law Reps. 13. 1d. 28. bId. 3. Id, 20,
of the reversion, (b) and some damage done thereto must be found by the jury.(C). A simple entry on land, however, even if *accompanied by a claim of right of way, is not necessarily injurious to the rever
[*215] sion.(d) Further it must appear upon the face of the declaration, that the plaintiff is entitled to a reversionary interest of some description,(e) and, according to the nature of this interest, will the amount of damages be regulated ; so that a reversioner for a life estate can only recover such damages, for an injury done to the estate, during the terms of a lease, as are equivalent to the injury done to the life estate ;(g) and where a nuisance affecting the reversionary estate is continued, recovery in one action will be no bar to another for continuing the nuisance.(h)
262. Joint-tenants and parceners, during the continuance of the joint estate,(i) must join in all actions ex delicto relative thereto ;(k) as, in trespass to their land,(l) and in trover or replevin(m) for their goods. So, co-heirs in gavelkind must join in trespass qu. cl. fr.(n) Where a farm was demised to A. and B. joinily, and A. by agreement underlet part of it to C., and gave receipts *for payment of rent, and a notice to quit in his own name only, it was held, that A. and B. could not maintain
[*216] a joint action against C. for pulling down a shed which stood on part of the premises demised.(0) As between joint-tenants and co-parceners trespass does not lie in respect of the joint estate, for each has an equal right to enter on any part of it ;(P) nor can trover be maintained, for the possession of one is the possession of all.(9)
263. We have already considered under what circumstances tenants in common should join or sever in a demise in ejectment against third parties :(r) as between themselves, this action will only lie in case of an actual ouster, or of such an occupation by one co-tenant as amounts thereto.(3) Demand of possession by one tenant in common and a refusal by the co-tenant, who stated that he claimed the whole estate, was held evidence of an actual ouster.(t) Where a person demised mines to a company of
(b) Jackson v. Pesked, 1 M. &. S. 234; Tucker v. Newman, 11 A. & E. 40.k, As to trover or trespass by the landlord for trees severed from the land, ante, s. 254.
(c) Young v. Spencer, 10 B. & C. 145;' per Best, C. J., Strother v. Barr, 5 Bing. 153 ;" Tucker v. Newman, 11 A. & E. 40.k
(d) Baxter v. Taylor, 4 B. & Ad. 72. 76. See Alston v. Scales, 9 Bing. 3;0 per Patte. son, J., 11 A. & E. 43.P
(e) Martin v. Goble, 1 Camp. 320. (g) Evelyn v. Raddish, Holt, N. P. C. 543;4 Woodfall, L. & T. 4th ed. 665. (h) Shadwell v. Hutchinson, 2 B. & Ad. 97 ;' ante, s. 248, ad finem. (i) As to the severance of these estates, 2 Bla. Com. 185. 189. (k) 1 Wms. Saund, 291 g., h.; 2 Id. 117 a.; Bac. Ab. Joint-Tenants, (K.); 2 Bla. Com. 182. 188. As to the action of ejectment, ante, ss. 30, 31.
(1) Bac. Ab. Joint-Tenants, (K.).
(m) 3 Salk. 205; Nelthorpe v. Dorrington, 2 Lev. 113; Woodfall, L. & T. 4th ed. 708, 709.
(n) Deering v. Moor, Cro. Eliz. 554. (0) Steel v. Western, 7 Moore, 29.
(p) 2 Bla. Com. 183. 188. (9) 2 Selw. N. P. 10th ed. 1364; Brown v. Hedges, 1 Salk. 290. As to the action for waste between joint-tenants and parceners, see 2 Bla. Com. 188; Co. Litt. 200, b.
(r) Ante, s. 34.
(s) Litt. s. 322; Doe d. White v. Cuff, 1 Camp. 173; Reading's case, I Salk. 392; S. C. 2 Lord Rayinond, 829; Doe d. Wawn v. Horn, 3 M. & W. 333;* s. C. 5 M. & W. 564;* Per Littledale, J., Cubitt v. Porter, 8 B. & C. 269.5
(1) Doe d. Hellings v. Bird, 11 East, 49 ; Per Lord Mansfield, C. J., Fisher v. Prosser, Cowp. 217. *Eng. Com. Law Rep. 39. 'Id. 21. mId. 15. Id. 24. Id. 23. Pld. 39. Id. 3.
"Id. 22. 'Id. 15. *Reprinted at $2.50 per vol.
which he afterwards became a member, and of which he actually was a member on the day on which the demise was laid, though it did not appear
*that he had ever been in possession as one of the company, it was [*217]
held that he might recover in an ejectment against another partner who defended on behalf of the company.(u) The action for mesne profits may, after recovery in ejectment, be brought by one tenant in common against his co-tenant,(w) and it has been held, that a tenant in common may distrain upon his co-tenant, being the assignee of his lessee.(y)
264. As against a third party, tenants in common should join in trespass qu. cl. fregit,(2) although a judgment in ejectment has been previously obtained on their several demises, for this is not inconsistent with the fact of the tenancy in common.(a) So, they must join in trespass for taking away their common property, (6) or for an entry upon their land ;(c) and wherever the subject matter of the tenancy is one entire thing—as, in detinue of charters, tenants in common must join in suing for its recovery or for an injury done to it.(d) Hence they must join in a quare impedit,
for *the presentation is entire ;(e) and if one of two part-owners of [*218]
a chattel sue alone for a tort to the chattel held in common, and the defendant do not plead in abatement, (f) he cannot afterwards so plead in an action by the other part-owner.(g) Tenants in common cannot join in an action of replevin for their several chattels.(h)
265. Trespass does not lie by one tenant in common against his co-tenant,(i) unless there be a total destruction of the common property, as of the deer in their park, or the flight of doves in their dove-house ;(k) neither will trover lie between these parties for a chattel held in common,(l) unless a total destruction or wrongful conversion can be proved.(m) And, although a sale of the whole of a ship by one who is only a part owner, in exclusion of the right of another who is tenant in common with him, will not, in point
(u) Francis v. Doe d. Hervey (in error), 4 M. & W. 331.
(2) Litt. s. 315; Com. Dig. Abatement. (E. 10). As to the action of account between tenants in common, see Sturton v. Richardson, 13 M. & W.17.*
(a) Chamier v. Clingo, 5 M. & S. 64.
(c) Com. Dig. Abatement (E. 10); Bac. Ab. Joint-Tenants (K.); Some v. Barwish, Cro. Jac. 231.
(d) Bac. Ab. Joint-Tenants (K.); Co. Litt. 197, b. ; infra, n.(g). In detinue the non. joinder cannot be given in evidence under a plea denying plaintiff's property in the chat. tel, Broadbent v. Ledward, 11 A. & E. 209, cited Mason v. Farnell, 12 M. & W. 674. 684, which was detinue by tenant in common against his co-tenant. As to giving a lien in evidence under “non detinet,” or “not possessed," see Barnewell v. Williams, 8 Scutt, N. R. 120; Lane v. Tewson, 12 A. & E. 116 ;u Cannee v. Spanton, 8 Scott, N. R. 714.
(e) Co. Litt. 197, b. (f) See Phillips v. Claggett, 10 M. & W. 102.*
(i) Litt. s. 323; Bennington v. Bennington, Cro. Eliz. 157 ; Cubitt v. Porter, 8 B. & C. 257;• Com. Dig. Abatement (F. 6).
(k) Co. Litt. 200, a., b.; Com. Dig. Estates (K. 8); Waterman v. Soper, 1 Lord Ray. mond, 737, as to which case see Holder v. Coates, 1 Moo. & Mal. 112; infra, n. (k).
(1) Selw. N. P. 10th ed. 1366; West v. Pasmore, there cited. (m) Higgins v. Thomas, 15 L. J. N., Q. B., 261, and cases there cited; Holliday v. Cam. Belì, 1 T. R. 658; Brammell v. Jones, cited 2 Selw. N. P. 10th ed. 1365; Fennings v. Lord Grenville, 1 Taunt. 241 ; Smith v. Stokes, 1 East, 363 ; Smith v. Oriell, Id. 368.
Eng. Com. Law Reps. 39. "Id. 40. Id. 15. *Reprinted at $2.50 per vol,
of law, [and per se] be necessarily equivalent to an ouster or destruction *of the subject-matter of the tenancy,(l) yet the general proposition seems true, that a sale by one of two tenants in common of the
[*219] whole of their property is a conversion as to the share of the other, provided the sale be so affected as to deprive that other of his interest in the chattel sold.(m)
266. An action on the case in the nature of waste lies by one tenant in common against his co-tenant for any misfeasance injurious to the common property ;(n) and if there be two tenants in common of a tree, which is cut down by one of them, although the other cannot have an action for the tree, yet he may sue for the special damage occasioned by the tortious act:(0) and this action may be maintained by one tenant in common against another, who has improperly pulled down a wall, the common property of both, or who has done waste,-the tenancy being, in a wood, turbary, or piscary.(P)
267. After assignment by the original reversioner, the assignee is the proper plaintiff, in suing for an injury to the reversionary interest in the demised property,(p) *provided such injury were committed during the continuance of his estate as assignee, and not prior to its commence
[*220] ment ;() as,
for diverting a water-course, where the declaration stated the locus in
quo to be in the possession of one J. S., as tenant to the plaintiff, and proof was given of a mortgage from J. S., the tenant for life, to the plaintiff
, who was entitled to the reversion.(s) So, a mortgagee of a lessee was held entitled to declare in case as reversioner against the assignee of the lessee (who had become bankrupt), for improperly removing fixtures.(t) A devisee or heir likewise may sue for a nuisance erected in the testator's lifetime, but continued after his death ;(U) and a remainderman for damage occasioned by undermining a wall during tenancy for life, which fell after the plaintiff's title accrued, the excavation having been continued.(x).
268. The reversioner, then, being the proper party to sue for the injury to the reversion, it remains to add that, for the injury to the possession, the tenant must recover damages ;(y) and in either case, such damages will be commensurate with the injuries which the respective interests *have sustained.(z) Hence, a copyholder, although he has no property
(1) Heath v. Hubbard, 4 East, 110; Barnardiston v. Chapman, cited Id. 121 ; Graves v. Sawcer, T. Raymond, 15.
(m) See per Parke, B., Farrar v. Beswick, 1 M. & W. 685. 688;* Barton v. Williams, 5 B. & Ald. 395,2 affirmed on error, 3 Bing. 139.
(n) Martyn v. Knowllys, 8 T. R. 145, 146.
(p) Per Littledale, J., Cubitt v. Porter, 8 B. & C. 270 ;a Co. Litt. 200, b. ; Per Tindal, C. I., delivering the judgment of the Court in Badbee v. Mayor, &c., of the City of Lon. don, 11 Law Journ., N. S., C. P. 221. () Penruddock's case, 5 Rep. 101 a.
(r) 2 Wms. Saund. 252 a, n. (7.) (8) Partridge v. Bere, í Dowl. & R. 272; S. C. 5 B. & Ald. 604. As between mort. gagor, mortgagee, and tenant, ante, ss. 41-45.
(t) Hitchman v. Walton, 4 M. & W. 409.*
(2) Gillon v. Boddington, 1 Ry. and Mo. 161,4 recognized, Howell v. Young, 5 B. & C. 268.0
(y) Jesser v. Gifford, 4 Burr. 2141 ; Beddingfield v. Onslow, 3 Lev. 209; Attersoll v. Stevens, 1 Taunt. 183. 190. (2) Selw. N. P. 10th ed. 1117; Woodfall, L. & T. 4th ed. 664-666. zEng. Com. Law Reps. 7. a Id. 15. Id. 7. Id. 21. dId. 11.
Reprinted at $2,50 per vol,