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felony.” By sect. 2, it is further enacted, that every such action shall be for the benefit of the wife, husband, parent, and child, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased, and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death, to the parties respectively for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, in such shares as the jury by their verdict shall find and direct.” By sect. 3, the action for damages must be brought within twelve calendar months after the death of such deceased person. It will be observed that the operation of this statute is confined to cases in which death ensues from the wrongful act, neglect or default of another, and therefore for a tort to the person which does not occasion death, as for an assault, or for an injury to the feelings or reputation of the testator, as for libel or slander, or the seduction of his daughter, the executors or administrators cannot recover damages, for they represent not so much the person, as the personal estate of the testator or intestate, of which they are in law his assignees.(0) It has been observed indeed that *the maxim Actio personalis moritur cum persona ? is not applied

[*244f] in the old authorities to causes of action ex contractu, “ but to those in tort, which are founded on malfeasance or misfeasance to the person or property of another; which latter are annexed to the person, and die with the person, except where the remedy is given to the personal representative by the statute law.”(P)

296. Previously to the stat. 3 & 4 Will. 4, c. 42, no remedy was provided for injuries to the real estate of any person deceased, committed in his lifetime,(q) but the second section of that statute enacts that an action of trespass, or trespass on the case, as the case may be, may be maintained by the executors or administrators of any person deceased, for any injury to the real estate of such person, committed in his lifetime, for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person, and provided such action shall be brought within one year after the death of such person, and the damages when recovered shall be part of the personal estate of such person. If an action be brought by a termor, upon the stat. 7 & 8 Geo. 4, C. 31, for an injury done to his house, within three calendar months from the offence committed, and that action abates by the death of the termor, after the three months have expired, his executor cannot, it seems, bring a fresh action ;(n) and it is a matter of doubt, whether an executor of a termor *can, in any case, bring an action upon that statute, for an injury to the premises under lease, sustained in the lifetime of his

[*245] testator.(C)

(0) 3 Bla. Com. 302, and n. (9), 16th ed.; Com. Dig. Administration, (B. 13); Wheatley v. Lane, 1 Wms. Saund. 216 (1).

(p) Per Lord Abinger, C. B., Raymond v. Fitch, 2 Cr. M. & R. 597, recognised Ricketts v. Weaver, 12 M. & W. 723.

(9) 1 Wms. Saund. 217, n.
(r) Adam v. Inhabitants of Bristol, 2 A. & E. 389.a

(e) Judgment, Id. 402; 1 Williams on Executors, 3rd ed. 630; 2 Chitt. Arch. Pr. 7th ed. 1180.

dEng. Com. Law Reps. 29.

297. Where a personal representative sues in right of the deceased for a tortious act committed in his lifetime, he must declare in that character; but in an action for the recovery of goods, or for taking away goods, the right to which vested in him by virtue of his representative character, and which right draws after it a constructive possession, an executor or administrator may either sue as such or in his individual capacity,(g) that is, he may lay the possession either as that of the deceased, or as his own; and this holds whether he was ever actually possessed or not.(h) Both executors and administrators ought to join in suing for a tort, committed in the lifetime of the testator or intestate, or for taking away his effects, subsequently to his death, for the interest is joint; and this holds, though one only possessed himself of such effects, for his act in so doing is, in law, the act of all.(i)

[*246]

*PART IV.

DEFENDANTS IN ACTIONS EX DELICTO.

CHAPTER I.

GENERAL RULES.

Who should be sued for a Tort, ss. 298, 299. Joinder of Parties liable for a Tort, ss. 300,

301. In the Case of a Partnership or a Corporation, ss. 302, 303. Where the Action is founded on a Contract or concerns Real Property, s. 304. Assignment of Lia. bility, s. 305.

298. The rule in actions ex delicto is, that the party committing the tortious act, or asserting the adverse right or title, must be made defendant, as the wrongful occupant of land in ejectment, (a) the party guilty of a conversion in trover, or of a nuisance in an action on the case ; and hence no difficulty can in general occur in determining the proper party to be sued for a tort, the consideration being, whether such party is legally liable or not : in reference to which it must be observed, that in many instances the person responsible in law is not the immediate cause of the injury sustained, as, where it is

(g) Per Buller, J., Gallant v. Bouteflower, 3 Dougl. 35, 36; Bollard v. Spencer, 7 T. R. 358; Hollis v. Smith, 10 East, 292; Bonafous v. Walker, 2 T. R. 126 ; 1 Williams on Executors, 3rd ed. 695, 696; 1 Wms. Saund. 112, n. (1); ante, s. 249.

(h) Adams v. Cheverel, Cro. Jac. 113; Com. Dig. Administration, (B. 10); see Bac. Ab. Executors and Administrators, (O.). See the forms of declaring on a conversion in the lifetime of deceased, and subsequently to his death, Chitt. jun. Pl. 666.

(i) Com. Dig. Administration, B. (12); Bac. Ab. Executors and Administrators, (D. 1. 3); Per Parke, B., 1 Cr. M. & R. 174; 2 Williams on Executors, 3rd ed. 1466. (a) Goodright v. Govett, 7 T. R. 327; Fenn v. Wood, 1 B. & P. 573.

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occasioned by his agent, or by one acting under his control,(b) or by a mischievous animal, of *which he is the owner, or where it results from his negligence,(C) provided that the plaintiff did not by his own

[*247] negligence or improper conduct, or by his own imprudence and want of caution, substantially contribute to the occurrence of the injury of which he complains(d). So, the tort may result from the defendant's misrepresentations, in which case, it is a principle of law, that where there is fraud and damage, the result of that fraud, not from an act remote and consequential, but one contemplated by the defendant at the time as one of its results, the party guilty of the fraud is responsible to the party injured.(e) So that where A. sells a gun with a fraudulent warranty to B. for the use of C., to whom such warranty is either directly or indirectly communicated, and who is injured by the bursting of the gun; A. is liable to B. on the warranty by reason of the privity of contract,(g) and to C. for the injury resulting from the false representation.(h)

*299. This distinction must, however, be observed, that if a man purchase goods of a tradesman without in any way relying upon

the

[*248] skill and judgment of the vendor, the latter is not responsible for their turning out contrary to his expectation ; but if the tradesman be informed at the time the order is given of the purpose for which the article is wanted, the buyer relying upon the seller's judgment, the latter impliedly warrants that the thing furnished shall be reasonably fit and proper for the purpose for which it is required ;(i) and where the warranty is one which the law implies, it will not be excluded by the fact of there being a written contract between the parties.(k)

300. The general rule is, that, in an action of tort, all persons concerned in the wrong are liable to be charged as principals ;(l) but instead of bringing his action against all jointly, the plaintiff may sue one or more at his election without exposing himself to a plea in abatement for non-joinder ; and this is an important distinction between actions founded in tort and on contract.(m)

(b) Wheatley v. Patrick, 2 M. & W. 650.*
(c) Lynch v. Nurdin, 1 A. & E., N. S. 29,a and cases there cited.

(d) 1 A. & E. 36;b recognizing Butterfield v. Forrester, 11 East, 60; Sills v. Brown, 9 C. & P. 601 ;c Raisin v. Mitchell, Id. 613, 617, n. (a); Woolf v. Beard, 8 C. P. 373 ;d Hawkins v. Cooper, Id. 473. Where the injury is produced by an unavoidable accident, no action will lie, Wakeman v. Robinson, 1 Bing. 213.e

(e) Per Parke, B., delivering the judgment of the Court, Langridge v. Levy, 2 M. & W. 532, affirmed in error, 4 M. & W.337, 338, and cases there cited; Pilmore v. food, 5 Bing. N. C. 97 ;? Per Buller, J., Pasley v. Freeman, 3 T. R. 56; Shrewsbury v. Blount, 2 Scott, N. R.588; Pontifex v. Bignold, 3 Scott, N. R. 390.

(g) See Brown v. Edgington, 2 Scott, N. R. 496; Jories v. Bright, 5 Bing. 533 ;Shepherd v. Pybus, 11 Law Journ., N. S., C. P. 101; S. C. 4 Scott, N. R. 434.

(h) Langridge v. Levy, 2 M. & W.519, 529.532.*
(i) Per Tindal, C. J., Brown v. Edginton, 2 Scott, N. R. 504.
(k) Shepherd v. Pybus, 11 Law Journ., N. S., C. P. 101; S. C. 4 Scott, V. R. 434.

Per Tindal, C. J., Cranch v. White, 1 Bing. N. C. 418.h (m) Per Lord Kenyon, C. J., Bristow v. James, 7 T. R. 259; Sutton v. Clarke, 6 Taunt. 29; í Wms. Saund. 291 d.; Mitchell v. Tarbutt, 5 T. R. 651. As to staying proceedings after recovery, against one of several tort-feasors, in an action against the others, see 2 Chitt. Arch. Pr. 7th ed. 993. * Eng. Com. Law Reps. 41. bId. 28. cId. 38. Id. 34. Id. 8. Id. 35. &Id. 15.

bid. 27. iId. 1. *Reprinted at $250 per vol.

301. Whether several can in legal contemplation be concerned in a tortious act depends on the nature of the particular act: thus, case lies against two persons for negligently driving a carriage jointly hired by them,

and of which they were in the joint possession at the time of the [*249]

accident occurring ;(n) and if two falsely and maliciously procure another to be indicted, an action on the case will lie against both, although in strictness, the procurement of one is not the procurement of the other,(0) or one only might be sued.(p) In like manner, several may be sued in trover, if there be a joint conversion,(I) and in trespass, provided the trespasses complained of are not of several and distinct kinds, for an action could not be brought against one for an assault and battery, and against a co-defendant for the asportavit.(r) So, if several are guilty of the same slander, there must be separate actions ;(s) but he who composes and he who publishes a libel, or causes another to publish it, may be sued jointly, for they conduce jointly to the injury.(1)

302. In trespass the rule is, that all persons who aid or counsel, direct or join, are joint-trespassers.(u) However a person's subsequent assent to a trespass will not be sufficient to render the assenting party a co-trespasser unless the trespass was done to his use or for his benefit.(x) And although

generally one partner cannot *involve another in the same mis[*250]

chief,(y) yet there may be exceptions to this rule, as in the case of a trespass, if it be in the nature of a taking, which is available to the partnership, more especially, if the other partners afterwards agree and consent to the act.(z) And partners cannot by private agreement between themselves vary their liability as to third parties. So that where A. and B. were partners in the business of public carriers, and by agreement between them, A. provided horses and drivers for certain stages, and B. for the remainder; it was held, that B. was nevertheless liable for the misconduct of a driver hired and paid by A. alone.(a) 303. We

may

observe here, that a corporation is liable in its corporate capacity for the tortious act of its agent, though not appointed by seal, if such act be an ordinary service within the scope of his authority, such as a distress(6) professedly made under a statute for a debt due to the corporation; and a jury may infer the agency from an adoption of the act by the corporation, as from their having received the proceeds of the seizure,(C)

(n) Davey v. Chamberlain, 4 Esp. 229.
(0) 2 Wms. Saund. 117 a., n. (2); Pencavin v. Trapping, Latch, 262.
(p) Mills v. Mills, Cro. Car. 239.
(9) Nicoll v. Glennie, 1 M. & S. 588.
(r) 2 Wms. Saund. 117 a.; Bac. Ab. Actions in General, (C).
(8) Chamberlain v. White, Cro. Jac. 647; 2 Wms. Saund. 117 a., b:

(1) Bac. Ab. Libel, (B. 1), (B. 2). See Martin v. Kennedy, 2 B. & P. 69 ; Watts v. Fraser, 7 C. & P. 369.

(u) Per Tyndal, C. J., Petrie v. Lamont, 1 Car. & Marsh, 96.k
(2) Wilson v. Barker, 4 B. & Ad. 614, 616.
ly) Per Tyndal C. J., Petrie v. Lamont, 1 Car. & Marsh. 93.m

(a) Weyland v. Elkins, Holt, N. P. C. 227. (6) Carey v. Matthews, cited, 1 Salk. 191 ; Manby v. Long, 3 Lev. 107. But replevin does not lie against a corporation aggregate, which can only distrain by bailiff, 1 Kyd. Corporations, 205.

(c) Smith v. The Birmingham Gas Company, 1 A. & E. 526; Yarborough v. The Bank of England, 16 East, 6.

*Eng. Com. Law Rep. 41. 'Id. 24. "Id. 41. Id. 3. "Id. 28.

(2) Id.

and trover, case,(d) or trespass will lie accordingly.(e) But if the service be not an ordinary one, *the agent must shew that he was authorized by deed.(8) And an action does not lie against individuals

[*251] for acts erroneously done by them in a corporate capacity, from which detriment happens to the plaintiff

, at least not without proof of malice.(h) Ejectment seems clearly maintainable against a corporation.(i)

304. The general rule being, as stated, that in actions ex delicto the nonjoinder of a co-defendant cannot be pleaded in abatement it still remains, after several conflicting decisions, (i) a matter of doubt whether such a plea would be good to a declaration framed in case, but founded on contract, and whether judgment could, as in actions founded on tort, be given for some defendants and against others ;(k) but, as against common carriers, it is now enacted, that non-joinder of a co-proprietor shall be no ground for pleading in abatement, even though the declaration be framed in assumpsit.(1) A distinction, moreover, is laid down between personal actions of tort and such as concern real property; and in actions of the latter description, it is said, that joint-tenants *and tenants in common must be sued jointly, subject to a plea in abatement.(m)

(*252] 305. There cannot, strictly speaking, be any assignment of liability for a tort, except by the death of the wrong-doer, in which case the remedy, if any, survives against his personal representatives.(n) But if a man has a cause of action against two, he may sue which he pleases ; as, if A. takes the goods of C., and B. takes them from A., C. shall have his action against A. or B. at his election.(0)

(d) Ib.; Mayor of Lyme v. Bealey, 1 Bing. N. C. 222.9

(e) Per Lord Ellenborough, C. J., 16 East, 7, opposed to the dictum of Lawrence, J., 8 East, 230. See the authorities collected, Id. 229, n. (a). It is now decided that trespass lies, Mound v. The Monmouthshire Canal Company, 11 Law Journ., N. S., C. P. 317.

(g) Horn v. Ivy, 1 Ventr. 47, recognized 1 A. & E. 530.4
(h) Harman v. Tappenden, 1 East 555.
(i) 1 Kyd. Corporations, 187, arg., Doe d. Parr v. Roe, 1 A. & E., N. S. 703.705."

) That it cannot be so pleaded, Govett v. Radnidge, 3 East, 62; contra, Powell v. Lay. ton, 2 Bos. & P., N. R. 365; Max v. Roberts, Id. 454;S. C. 12 East, 89; Weall v. King, 12 East 452; and see the cases cited, per Littledale, arg., Bretherton v. Wood, 3 B. &. B. 58; Pozzi v. Shipton, 8 A. & E. 963.

(k) See 1 Selw. N. P. 10th ed. 410, 411. (1) 11 Geo. 4 & 1 Will. 4, c. 68, s. 5.

(in) Per Lord Kenyon, C. J., Mitchell v. Tarbutt, 5 T. R. 651 ; Bro. Abr. Joint-tenancy, pl. 12, cited, Id. 651; Com. Dig. Abatement, (F. 6.); 1 Wms. Saund. 291 e. (n) Post, chap. iv. pt. 2. (0) Bac. Ab. Actions in General, (B.).

PEng. Com. Law Reps. 27. qId. 28. "Id. 41. 'Id. 7. Id. 35.

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