CHAPTER V. PARTIES TO ACTIONS, IN FORM EX DELICTO. SECTION I. II. PLAINTIFFS. 1. General rule. 2. Master and servant-Seduction. 3. Injuries, &c., to personal property. 4. Injuries to real property. 5. When to join or sever; and when a tenant in common, &c., may sue his cotenant. 6. When the interest in the property has been assigned. 7. When one of the several parties interested is dead. 8. In the case of the death of the parties injured. 9. In case of insolvency. 10. In case of marriage. 11. How and when nonjoinder, &c., of plaintiffs in actions ex delicto may be objected to. DEFENDANTS. 1. General rule. 2. Infants and lunatics. 3. As to the number and joinder of defendants. 4. Corporations. 5. Public officers. 6. Who are liable as principals. 7. Servants, agents and attorneys. 8. Intermediate agents. 9. Injuries by animals. 10. Injuries to land. 11. When the interest has been assigned. 12. In the case of the death of the wrongdoer. 13. In case of insolvency. 14. In the case of marriage. 15. How and when nonjoinder, or misjoinder, &c., of defendants, in actions ex delicto, can be objected to. 1. General Rule. He who has sustained the loss by a tort or wrong, is, in general, the proper person to call for compensation from the wrongdoer. A cestui que trust, or other person having only an equitable interest, cannot, in Master and servant- - Seduction-Injuries, &c., to personal property. general, sue, at law, his trustee, or even a third person; unless in an action against a mere wrongdoer, and for an injury to the actual possession of the cestui que trust.1 2. Master and Servant― Seduction. If the injury were to the absolute or relative rights, the action must, in general, be brought by the party injured. In the case of master and servant, the master may sue alone for the battery of his servant, or for debauching his servant, (although the master and servant are not related,) where there is evidence to prove a consequent loss of service.? A father may sue for the seduction of his daughter, although married, provided she be living with her father, and some loss of service be proved.3 Where the daughter is above the age of majority, there must exist some kind of service, so as to constitute, in law and in fact, the relation of master and servant; the slightest acts, however, are sufficient, in this action, to establish the relation of master and servant. But, if the daughter be under the age of majority, the right of the parent to the services of his daughter, is sufficient to maintain the action by the father, without proof of actual service.5 And if, at the time of the seduction, the daughter be a minor, and reside in another person's family, as a hired servant, without an intention to return to her father, the latter can maintain the action, if she returns to him in consequence of the seduction, and is maintained by him, or if he is liable to a third person for her lying in.6 Where a widow bound her daughter an apprentice, who was seduced, upon which the indentures were cancelled by consent, and the daughter returned to the mother's house, and lay in there, it was held that the mother might maintain an action on the case, for the seduction. The English rule requires evidence, though very slight evidence will be sufficient, to support the allegation, per quod sevitium amisit, even where the daughter is under age.8 In general, however, if, from extreme youth, no services could be rendered by the child, the parent cannot sue for a personal injury inflicted upon the child,” if the father has incurred no expenses.9 3. Injuries, &c., to personal property. The absolute, or general owner of personal property, having also the right of immediate possession, may, in general, support an action for any injury thereto, although he never had the actual (1) 1 East 244; 7 T. R. 47; 2 Saund. 47, d. (4) 4 Cowen 412; 1 Wend. 447; 10 Johns. 115; 6 S. & R. 177. (5) 9 Johns. 387; 21 Wend. 79; 2 Wend. 459; 8 S. & R. 36; 1 Halst. 322; 1 Wend. 447. Contra, 5 East 45; see T. R. 45; 2 T. R. 166; 3 Burr, 11 1878; 2 T. R. 4; 11 East 23; 6 S. & R. 175; 2 Penn. 583; 5 Har. & Johns. 27; 1 Chit. Pl. 8 Am. ed. 60. (6) 9 Johns. 387; 2 Wend. 459; 8 S. & R. 36; (8) 1 Chit. Pl. 8 Am. ed. 60; 5 East 45. Injuries, &c., to personal property-to real estate. possession.10 Therefore, the owner may maintain trespass for taking property loaned or lent to another, for an indefinite or indeterminate period.11 An action for an injury to personalty, may also be brought in the name of the person having only a special property, or interest of a limited or temporary nature therein.12 So, there are cases where a person having the bare possession of goods, which is prima facie evidence of property, may sue a mere wrongdoer, who takes or injures them, although it should appear that the plaintiff has not the strict legal title; there being no claim by the real owner, and the defendant having no right or authority from him.13 Although, in the above instances, the action may be brought by the general or special owner of the goods, against a stranger, yet a judgment obtained by one, in an action against a stranger for a conversion, is a bar to an action by the other.14 And there is this distinction as to damages, in trover, by one having a special property; that if such person sue the general owner, he recovers according to his special property: but if he sues a stranger, he recovers according to the value of the general property, holding the balance, beyond the value of his special property, in trust for the general owner. 15 When the general owner has not the right of immediate possession, as where he has demised the goods, or let them to hire for a term unexpired, he cannot maintain trespass or trover, (which are forms of action founded upon possession, actual or constructive,) even against a stranger;16 although, if the injury were sufficient to affect his reversionary interest, he may support a special action on the case to recover damages to the extent of the injury he has sustained.17 4. Injuries to real property. The person, in the clear and exclusive possession of real property corporeal, whether lawfully or not, may sue for an injury committed by a stranger, or by any person who cannot establish a better title,18 and the cestui que trust, in possession, should be the plaintiff, and not the trustee. A person having the immediate reversion or remainder in fee, or in tail, or for a less estate, may sue, in case, for waste, or any nuisance of a permenant nature, or which affects, litigates, and injures the right, and which is injurious to his reversionary interest; but he cannot sue, in trespass, when the possession is lawfully in his tenant or other person.19 (15) 7 Cowen 681, n. a. (16) 7 T. R. 9; 17 Wend. 91; 8 Johns 432; 10 Eng. C. L. Rep. 477. (17) 7 T. R. 9; 1 Taunt. 190, 191; 3 Halst. 267. (18) 1 East 244; 7 Eng. C. L. Rep. 203; 4 Johns. 150; 15 Eng. C. L. R. 345. (19) 19 Wend. 507; 1 Johns. 511; 8 Pick. 235; 7 Conn. 328; 2 N. Hamp. 430. 3 N. Hamp. 103; Com. Dig. ACTION, Case, Nuisance, TRESPASS, B. 3.; 1 Saund. 323, b.; 4 Burr. 2141; see ante, p. 24. Who to join or sever. The tenant may support trespass against a stranger, for an injury to his possession; and the immediate reversioner may, at the same time, support an action on the case, if the injury were sufficient to prejudice his right and interest; and a recovery by one, will be no bar to an action by the other.20 The nominal plaintiff in ejectment, may sue for mesne profits.21 The right of the owner of vacant land, to maintain an action for an injury done to his land, has been already stated.22 5. Who to join or sever; and when a tenant in common, &c., may suc his colenant. Where two or more persons are jointly entitled, or have a joint legal interest in the property affected, they must, in general, join in the action, or the defendant may plead in abatement; and though the interest be several, yet, if the wrong complained of caused an entire joint damage, the parties may sever or join in the action; but where the interest and damage are both several, each party must sue separately.23 Therefore, two persons cannot join in an action for false imprisonment, assault and battery, or slander, except for slander of their joint title, or words spoken of them in the way of their joint trade, as partners, &c.24 Copartners, however, may join in a suit against other copartners, for falsely or fraudulently recommending an insolvent person as worthy of credit.25 A husband and wife may sue jointly for a malicious prosecution and imprisonment of both, or the husband may sue alone.26 Although a joint action cannot, in general, be maintained, where the wrong done to one, is no wrong done to the other; yet, for expenses jointly incurred by two persons, in procuring their liberation from a malicious arrest of both, they may jointly sue, if the joint expenses be laid as a special joint damage.27 In actions for injuries to personal property, joint tenants and tenants in common must join, or the defendants may plead in abatement;28 but parties having separate and distinct interests, cannot in general join;29 unless, indeed, the injury occasion an entire joint damage to them. Thus, the dippers at Tunbridge Wells were allowed to join in an action against a person who exercised the business of a dipper, not being duly appointed.30 In actions for injuries to real property, joint tenants and parceners must join in real as well as personal actions, or the nonjoinder may be pleaded in abatement.31 Tenants in common must also, in general, join.32 In ejectment, tenants in common may declare by joint or separate demises;33 and they may sue (20) 4 Burr. 2141; Com. Dig. Action, Case, Nuisance. (21) Stat. 665, §74. (22) See ante, p. 24. (23) 1 Saund. 291, g; 2 Saund. 116, n. 2. (24) 2 Saund. 116, a, 117, a. (25) 17 Mass. 182; see 6 Mass. 460. (26) Cro. Car. 553. (27) 17 Eng. C. L. Rep. 148. (28) Co. Lit. 145, b. (29) Cro. Eliz. 473; 2 Saund. 116, a; 377, a. (30) 2 Wils. 423; 2 Saund. 116, n. 2. (31) Co. Lit. 183. 197; 10 Ohio Rep. 442. (32) 15 Johns. 479; 8 Cowen 304; 13 Johns. 286; 2 Mass. 511; 17 Mass. 182; 7 Mass. 135; 11 Mass. 419; Lit. Sec. 315, 316; 14 Johns. 426; see 11 Ohio Rep. 364. (33) Stat. 652, §70; 7 Ohio Rep. (Part 2) 136 2 Ohio Rep. 287-304. Who to join or sever. separately in trespass for mesne profits.34 Where land is let for one or more years and rent therefor is to be paid by a proportional part of the crop raised on the premises, the landlord and tenant are tenants in common of the crop, and should jointly sue a stranger for spoiling, taking, or injuring the crop.35 (34) 1 Chit. Pl. 8 Am. ed. 65, It was held in the case of Green v. Cady, et al., 9 Wend. 414, that trustees de facto of a religious Society, whether such society be incorporated or not, may maintain an action against a trespasser, for an injury to the meeting house of the society. See ante, p. 41. (35) In Wilson v. Crosby et al., Wright 288, it was held that the owner of a mill might maintain an action of trespass quare clausum fregit against a trespasser, although the owner had put a person in possession of the mill to tend it as miller who received for his compensation a pro*portional part of the profits; but in the case of Miller v. Fulton et al., 4 Ohio Rep. 431, it appearing that the miller employed and paid hands to assist him, it was held that the owner of the mill could not maintain the action. In the former case, the miller was treated as the mere servant of the owner of the mill, and in the latter, as the tenant. In Penfield v. Rich, 1 Wend. 380, it was held, that where mills are worked on shares, the owner and occupant must be considered as partners or quasi tenants in common of the mill. In Ambler v. Bradley, 6 Verm. 119; S. P. 10 Verm. 170, it was held, that in such case it was not a partnership, but the share which the occupier received was a mere compensation for his labor. The Statute of the State of Ohio (Stat. 520, §84) provides, that "in all cases when any lands may have been let, reserving rent in kind, and when the crops growing or grown thereon, shall be levied on or attached, by virtue of any execution, attachment, or other process, against the landlord or tenant, the interest of such landlord or tenant against whom process was NOT issued, shall not be affected thereby; but the same may be sold, subject to the claim or interest of the landlord or tenant against whom such process did NOT issue." The case of Case v. Hart & Humphrey, 11 Ohio Rep. 364, was this: The plaintiff leased to one Petty, for one year, certain lands, for which Petty was to deliver to Case one third of all the grain raised, in the half bushel. The whole crop was levied upon as the property of Petty, and sold on execution by Humphrey, one of the defendants, who was a constable, to Hart, the other defendant, who was security for Petty on the judgment. Petty afterwards harvested the crop, and enough to satisfy the judgment was applied to its payment; but the plaintiff never got any of the crop, and brought this action of trover to recover from Hart and Humphrey his undivided third of the grain. The court held that the entire crop could not be removed by the tenant, or those acting in his behalf, or, as successors to his rights, without first satisfying the landlord's rent; and that the sale by the constable wrought, as to the plaintiff, a conversion and destruction of the whole property, and gave judgment for the plaintiff, for the value of his share of the crop. But see 5 Pick. 522; 17 Maine 257; 9 Greenl. 137; 7 Pick. 100; 24 Pick. 191. In the case Hare v. Celey, Cro. Eliz. 143, it was held, that where lands are let on shares for a single crop, the owner of the land and occupier may support a joint action against a stranger, for an injury to the crop, though the owner of the fee alone could maintain trespass quare clausum fregit. See Chit. Pl. 8 Am. ed. 174. In the case of Stewart v. Doughty et al., 9 Johns. 113, where a farm was let, for six years, for one half the crops, to be delivered by the tenant, each year, in the bushel, &c., it was held, that the tenant and owner were not tenants in common of the crops, but the property in the crops were exclusively in the tenant, until he separated, and delivered to the landlord, his proportion; and that an action of trespass quare clausum fregit could be maintained by the tenant against the landlord, for entering and gathering the crop. In the case of Bradish v. Schenck, 8 Johns. 151, it was held, that` letting land upon shares, if for a single crop, is no lease of the land, and the owner alone can maintain an action of trespass quare clausum fregit. In the case of Jackson ex dem. v. Brownell, 1 Johns. 265, and in the case of Overseers of Poor v. Overseers, &c., 14 Johns. 365, it was held, that the letting land upon shares for a year is a lease of the land; and, consequently, 1 Johns. 511, 3 Johns. 468, in such case, the landlord cannot maintain an action of trespass quare clausum fregit against a stranger. In the case of Caswell r. Districh, 15 Wend, 379, where a farm was let by the plaintiff to the defendant for one year, the defendant agreeing to sow oats, &c., and to give the plaintiff' one third in the half bushel, &c., it was held, a letting on |