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in minerals, has a sufficient possession to entitle him to maintain trespass against a wrong-doer, and may recover substantial damages for any actual injury done to the surface of the land, and nominal damages for a trespass committed below the surface. (a)
269. If, however, there be a surrender of the tenancy by operation of law, the right to sue for a tort to the premises previously demised will vest exclusively in the owner of the soil; therefore, where the tenant of a ferry, finding it unprofitable, agreed with the owner to become his servant at fixed wages, and to account to him for all money received from passengers, it was held, that case for disturbing the ferry was rightly brought in the name of the owner; for a new relation had taken place, with the consent of both parties, wholly inconsistent with that of landlord and tenant.(b) So, a servant, who is put into the occcupation of a cottage, with less wages on that account, does not occupy as tenant; and in case for disturbing a right of way, the occupation may properly be laid as that of the master.(c)
270. In case of a change of tenancy, the proper remedy for any mismanagement of the land during the former term belongs to the landlord, and not to the *incoming tenant ;(d) and the latter could not, it was [*222] consequently held, maintain trover for the away-going crop to which the off-going tenant had forfeited his title by non-compliance with the terms of his lease. (e) Where an outgoing tenant had contracted with his landlord to leave the manure on the premises, and to sell it to the incoming tenant at a valuation, it was held, that the outgoing tenant had a right of onstand for the manure on the farm, and that, both the possession and property remaining in him until the valuation was made, he was entitled to bring trespass against the incoming tenant, who, previously to such valuation, removed and used it.(g)
2.-PRINCIPAL AND AGENT-MASTER AND SERVANT.
General Rule.-Instances of its application, ss. 271-274. Consignor, Consignee, and Carrier, s. 275. Right of Action of Master for an Injury to his Servant, ss. 276, 277.
271. Since either a general or a special property is sufficient to support an action of trover for the recovery of goods, and since, for an injury done to them, trespass will ordinarily lie at suit of the party in possession,(h) it follows that, as a general rule, these forms of action may be supported, either by the principal and general owner of goods, or by the agent and
(a) Lewis v. Branthwaite, 2 B. & Ad. 437. 444.*
(b) Peter v. Kendal, 6 B. & C. 703. 710.
(c) Bertrie v. Beaumont, 16 East, 33. See Martin v. Goble, 1 Camp. 320.
(g) Beaty v. Gibbons, 16 East, 116. See Woodfall, L. & T. 4th ed. 497.
Eng. Com. Law Reps. 22. fId. 14.
special owner entrusted *therewith. (i) Thus, a carrier, who is the
mere instrument of conveyance, may maintain trover against a stran- [*223] ger who takes the goods out of his possession ;(k) and so may a factor,(1) a warehouseman who has goods for safe custody only, (m) an auctioneer who has a possession coupled with an interest in the property which he is appointed to sell,(n) or an indorsee of a bill of lading, for the purpose of effecting a stoppage in transitu on behalf of the vendor. (0) In like manner, a trustee,(p) pawnee,(g) or gratuitous bailee, (r) respectively may sue for a tort to the chattel held in trust or on bailment.
272. In addition to the above instances, an agister of cattle may maintain trover against a stranger who takes them away ;(s) and a shopkeeper may have trespass for *taking goods sent to him on sale or return.(t) So, the master of a fly-boat, who was hired by a canal company at [*224] weekly wages, may maintain trespass for cutting a rope fastened to the vessel, and whereby it was being towed, although the vessel and the rope were the property of the company.(u) Where, however, a person sends his servant to distrain for rent, and the servant distrains cattle and impounds them, and a stranger takes them out of the pound, the action for the poundbreach must be brought by the master, and not by servant or pound-keeper; and if the cattle are rescued from the servant, the master is the proper party to sue, for he sustains the injury.(x)
273. Where a bill of exchange was drawn by A. on, and accepted by B., for the purpose of being discounted, and having the proceeds applied to the payment of other bills, which, however, before they became due, were paid by B., who thereupon directed A. to hold the first mentioned bill to his use, and not to part with it without his authority, but A. for his own purposes indorsed it to C., having previously stated that it belonged to B., and that he had no authority to part with it; the Court held, that, although B. could not have recovered on the bill, he might, nevertheless, as having the property therein, maintain trover for its conversion.(y) So, trover will lie for bills of exchange indorsed to an agent of the plaintiffs
(i) Per Lord Loughborough, C. J., 1 H. Bla. 85; Per Lawrence, J., 8 T. R. 334; Per Grose, J., 7 T. R. 12; 2 Wms. Saund. 47 e.
(k) Per Lord Ellenborough, C. J., Martini v. Coles, 1 M. & S. 147; Arnold v. Jefferson, 1 Lord Raymond, 275, 276; 1 Roll. Ab. 4 (I.), pl. 1.
(2) Williams v. Millington, 1 H. Bla. 85.
(m) Per Lord Ellenborough, C. J., 1 M. & S. 147.
(n) Williams v. Millington, 1 H. Bla. 81. 84.
(0) Morison v. Gray, 2 Bing. 260,5 distinguishing Waring v. Cox, 1 Camp. 369, and Coxe v. Harden, 4 East, 211; Cuming v. Brown, 9 East, 506. But the unpaid vendor has a right of stoppage in transitu as against the vendee's agent, the latter party being also indorsee of the bill of lading. Patten v. Thompson, 5 M. & S. 359, and cases there cited. See Bryans v. Nix, 4 M. & W. 775.*
(p) 2 Wms. Saund. 47 b, n.
(r) Rooth v. Wilson, 1 B. & Ald. 59.
(8) Com. Dig. Trespass, (B. 4).
(t) Colwill v. Reeves, 2 Camp. 575.
(q) Com. Dig. Trespass, (B. 4.)
(u) Moore v. Robinson, 2 B. & Ad. 817;h Per Holt, C. J., Pitts v. Gaince, 1 Salk. 10. (x) 1 Selw. N. P. 10th ed. 678, 679.
(y) Evans v. Kymer, 1 B. & Ad. 528. 535.i
or order, for their account, and deposited with *the defendants by such agent as a security for past and future advances by the defendants to him.(y)
274. Where a loss accrues to the principal by reason of fraud practised on, or negligence committed towards, his agent, an action on the case will lie at suit of the former, to recover damages, from the party practising the the fraud,(z) or guilty of the negligence.(a)
275. The rule already laid down (b) in actions of contract, viz. that the consignee and vendee of goods is the proper party to sue the carrier by whom they are transmitted, holds also in actions founded on tort, and the consignor cannot maintain case or trover against the carrier for their loss, although he paid for booking them, because this was done merely as agent, for the vendee.(c) So, if the goods are lost in transitu, such loss will fall on the consignee, although the particular carrier employed had not been named by him.(d) And if A. order goods to be transmitted to him by a particular carrier, though upon condition to return them again if he dislike them; yet, upon delivery to the carrier the property is vested in A., and he will be bound to pay the price to the *vendor; and, consequent[*226] ly, the vendor cannot bring trover against the carrier if he convert the goods to his own use. (e) But where goods are merely sent for approval, no property passes :(g) and where goods were sent by a carrier to an agent who was to forward them to the consignee abroad, and the carrier detained the goods on the ground of a lien against the agent for his general balance; it was held, that trover might be maintained against the carrier at the suit of the consignor.(h)
276. To the relation between master and servant, and the right accruing therefrom, there are two species of injuries incident :-First, the enticing away an apprentice before the term of apprenticeship has expired; in which case the master has a remedy against the person who caused the breach of contract, either in case for the tort, or in assumpsit for the work and labour of the apprentice, and likewise against the servant for his breach of the agreement :(i) and secondly, the occasioning a personal injury to the servant, and thereby affecting the property which the master has, by his contract, acquired in the labour of the servant; in which case, besides the remedy which the latter himself may have as an individual, the master also may recover damages from the
(y) Treuttul v. Barandon, 8 Taunt. 100, recognized 1 B. & Ad. 535. See Sigourney v. Lloyd, 8 B. & C. 622, affirmed in error, 5 Bing. 525;m Foster v. Pearson, 1 Cr. M. & R. 855. (z) Tracy v. Veal, Cro. Jac. 223. (a) Beedle v. Morris, Cro. Jac. 224; ante, ss. 61. 191.
(b) Ante, s. 66.
(c) Dawes v. Peck, 8 T. R. 330; Wilbraham v. Snow, 2 Wms. Saund. 47 a, n. (1). (a) Per Lord King, C., Godfrey v. Furzo, 3 P. Wms. 185, 186; Snee v. Prescott, 1 Atk. 248; Dutton v. Solomonson, 3 Bos. & P. 584; ante, s. 67. See per Wightman, J., Coates v. Chaplin, 11 Law Journ. N. S., Q. B. 317, and cases cited in the argument. (e) Haynes v. Wood, cited 2 Selw. N. P. 10th ed. 1345.
Id.; Staples v. Alden, 2 Mod. 308.
See Colston v. Woolston, cited
(g) Swain v. Shepherd, 1 Moo. & Rob. 223, recognized in Coates v. Chaplin, 11 Law Journ., N. S., Q. B. 315.
(h) Tagliabue v. Wynn, cited 1 Selw. N. P. 10th ed. 408.
(i) 3 Bla. Com. 142; Foster v. Stewart, 3 M. & S. 191. See Bird v. Randall, 3 Burr. 1345.
*Eng. Com. Law Reps. 20. Id. 15. Id. 15.
wrong-doer for the loss of service, and for expenses *necessarily incurred in consequence of the tortious act ;(k) and such damages may be given for loss of service, not only before action brought, but afterwards down to the time when, as it appears in evidence, the disability may be expected to cease. (1) Nor will the master's remedy be detroyed, by reason of the remoteness of the damage, although the remedy of the servant was only by an action on the case, and not by an action of trespass.(m)
277. So, a parent may recover for a tort done to the child, occasioning loss of service ;(n) though for the personal injury the child alone can reco. ver damages :(0) and trespass for the direct injury of debauching a servant or child, though married,(p) or only adopted,(4) or case for the consequential damage, is maintainable on the same grounds. (r) But some loss of service (though very slight is sufficient) must be shewn ;(s) therefore, an action does not lie at suit of a parent for seduction of his child whilst serving another as apprentice,(t) or whilst living in another person's [*228] family as servant, without any animus revertendi.(u) Where the declaration in an action on the case for the seduction of the plaintiff's daughter contained no allegation of loss of service, but was framed upon the stat. 43 Eliz. c. 2, s. 7, by which the father, when of sufficient ability, is bound to maintain his child, being poor and unable to work, the judgment was arrested on the ground that the gist of the action for seduction is the loss of service, and that the action can only be maintained in respect of the damage resulting therefrom.(v).
(k) 3 Bla. Com. 142. See Hall v. Hollander, 4 B. & C. 660."
(1) Hodsoll v. Stallebrass, 11 A. & E. 301.°
(m) Martinez v. Garber, 3 Scott, N. R. 306.
(n) Hall v. Hollander, 4 B. & C. 660," As to trespass for abduction of a child, 3 Bla. Com. 141; Barham v. Dennis, Cro. Eliz. 769, cited 4 B. & C. 662;" and see 5 M. & W. 516.*
(0) Gladwell v. Steggall, 5 Bing. N. C. 733. 736.P
(p) Harper v. Luffkin, 7 B. & C. 387.9
(9) Irwin v. Dearman, 11 East, 23. See Edmondson v. Machell, 2 T. R. 4.
(r) 3 Bla. Com. 16th ed. 142, n. (20); Chamberlain v. Hazlewood, 5 M. & W. 515.* (s) Ib.; Per Parke, B., 2 M. & W. 542,* and 6 M. & W. 56;* Bennett v. Allcott, 2 T. R. 166; Judgment, Grinnell v. Wells, 8 Scott, N. R. 752; Torrence v. Gibbins, 5 Q. B. 297; per Coleridge, J., Id. 300; Barrett v. Oliver, Q. B. June 20, 1846.
(t) Harris v. Butler, 2 M. & W. 539.*
(u) Dean v. Peel, 5 East, 45; Speight v. Oliviera, 2 Stark. N. P. C. 493, recognised per Parke, B., 2 M. & W. 542 ;* Blaymire v. Haley, 6 M. & W. 55.*
(v) Grinnell v. Wells, 8 Scott, N. R. 741, where all the cases are cited. See Boyle v. Brandon, 13 M. & W. 738.* As to actions ex delicto by partners, see s. 258. A corporation may maintain ejectment (Adams on Ejectment, 4th ed. 57,) and may sue for a tort to the property of the corporation (see 1 Kyd on Corporations, 190, Mayor of Colchester v. Brooke, 15 L. J., N. S., Q. B., 59,) or for a penalty due under a bye-law (ante s. 89; see also Piper v. Chapell, 14 M. & W. 624.*) As to actions by Churchwardens and Overseers, see Rumball v. Munt, 15 L. J., N. S., Q. B., 180; Ward v. Clarke, 12 M. & W. 747.*
Eng. Com. Law Reps. 10. Id. 39. Id. 35. Id. 14. Id. 48. Id. 3
HUSBAND AND WIFE-ALIEN-CIVIL DEATH.
When the Husband must sue alone, ss. 278-281. When the Wife may sue alone, s. 282. When the Husband may elect to sue alone or jointly with his Wife, ss. 283, 284. When the Husband and Wife must sue jointly, ss. 285-287. Alien, &c., ss. 288, 289.
278. THE husband must sue alone for all injuries to his own property and person,(a) for in these his wife has no legal interest; and it must be observed that such property includes personalty in possession of the wife before marriage, and such as subsequently accrues to the husband in her right;(b) therefore, the husband must sue alone, for carrying away corn grown on the real estate of the wife, but severed from the soil,(c) although, for the tortious act of cutting it, she might join by reason of her interest in the land. (d) So, tithes in right of the wife's rectory belong to the husband, when set out, and must be recovered by him alone in trover; (e) and husband and wife cannot join in an *action of trover, and declare that [*230] they were both possessed of certain goods, and that defendant converted them to their damage, for the possession of the wife is the possession of the husband, and so is the property, and therefore the conversion is to the damage of the husband alone.(g)
279. It is however necessary to consider, in suing for goods which originally belonged to the wife dum sola, whether they have been reduced into the husband's possession or not; if they have been so reduced, he must sue alone for them, if the contrary, he may elect to sue jointly with his wife ;(h) and in this case the true test is, whether the right of action would survive to the wife.(i) But in detinue for goods of a feme covert, which came to defendant's hands before marriage, and the property in which was thereupon transferred by law to the husband, it is laid down that the husband must sue alone; (k) although it is said that the wife may join for detention of a deed by which an annuity is granted to her, on account, as it should seem, of her interest in the annuity thereby secured. (1) So, replevin cannot be supported by husband and wife, without shewing in *the [*231] declaration the nature of the wife's interest, as that the chattels belonged to her in autre droit, or alleging that the taking was before the cover
(a) Newton v. Hatter, 2 Lord Raymond, 1208; Marshal v. Doyle, Cro. Jac. 473; Tal
bot v. Bacon, 1 Lev. 3; Dunwell v. Marshall, 2 Lev. 20; 3 Bla. Com. 143.
(b) Ante, s. 94; Tugman v. Hopkins, 11 Law Journ., N. S., C. P. 309.
(c) Arundel v. Short, Cro. Eliz. 133. But see Com. Dig. Pleader, (2 A. 1); Cookson v. Castline, Cro. Eliz. 96.
(d) Com. Dig. Pleader, (2 A. 1); Cockson v. Castline, Cro. Eliz. 96.
(e) Com. Dig. Bar. and Feme, (W.). See Ford v. Pomeroy, Noy, 136.
(g) Nelthrop v. Anderson, 1 Salk. 114.
(h) Arundel v. Short, Cro. Eliz. 133. See Ayling v. Whicher, 6 A. & E. 259. 264;t post, ss. 284, 285.
(i) Per Lord Denman, C. J., and Coleridge, J., 6 A. & E. 264.t
(k) Bac. Ab. Detinue, (A.), Bar. and Feme, (K.); 1 Selw. N. P. 10th ed. 656; Woodfall, L. & T. 4th ed. 578.
(1) Bac. Ab. Detinue, (B.). Held, that she ought to join in trover for a deed, granting a rent-charge to her dum sola, though the finding was during coverture, Bac. Ab. Bar. and Feme, (K.); Com. Dig. Bar. and Feme, (V.).
*Eng. Com. Law Reps. 33.