ex delicto. Of defendants in actions ex delicto.] The person commit- Defendants ting the injury either by himself or agent, is in general to be General rule. defendant.27 All persons liable for tions; All natural persons are liable for their tortious acts, including femes covert, 28 lunatics, 29 and infants.30 But an infant torts; cannot in general be made liable by a change of action from contract to tort;31 nor can infants or femes covert be made trespassers by prior or subsequent assent.32 Corporations may and corpora be sued in that character in many instances, for damages arising from the neglect of a duty;33 as in an action on the case for the negligence of their agents or workmen ; but they are not liable in trespass or replevin; and the action must be brought against the person who committed the injury.35 who assist, An action lies against any person who was a party to a and those trespass or conversion, or assisted in it or directed it to be assent, &c. done, or subsequently assented to it ;56 and where there are several, they may all be joined, whether their assent were prior or subsequent.37 There must be some actual interference of a plaintiff to make him liable for a levy by the sheriff under his execution.38 liable for A master or principal is liable for the negligence, miscon- Master when duct, unskilfulness or fraud of his servant or agent, while act- servants acts. 271 Chit. Pl. 65. 23 Ib. 29 Ib. Hob. 134. 2 East. 104. Bac. Abr. Trespass. G. 1diot. E. 208 T. R. 336, 7 Bac. Abr. Infancy, H. 1 B. & Pul. 140. Cranch. 226. 6 318 T. R. 335. 1 Ib. 41. 6 Cranch. 230. 35 8 East. 229. 230. Bac. Abr. Corporations, E. 2. 5. Disseisin, B. 1 Chit. Pl. 66. 36 2 Saund. 47. i. n. 1. 7 John. Rep. 202. 11 Ib. 285. 2 Mod. 245. 6 T. R. 300. 1 Bos. & Pul. 369. 2 Esp. Rep. 553. 372 Bl. Rep. 1055. 1 Salk. 409. Co. Lit. 180. b. n. 4. Cowp. 478. 32 Co. Lit- 180. b. n. 4. 1 Chit. 3 Wil. 377. Lane, 90. Pl. 65. 67. 23 6 T. R. 672. 38 Bul. N. P. 41. 1 Bos. & Pul. 369. 2 Esp. 553. 3 Wils. 309. 1 243 Campb. 403. 4 Ib. 72. 6. Chit. Pl. 67. John, Rep. 90. EX DELICTO. DEFENDANTS ing in his employ, or within the authority delegated to him,39 and also for the acts of the sub-agent or servant of the agent,40 but not for wilful injuries committed without his command or assent," nor for acts wholly beyond the agent's authority.42 But a sheriff is liable for the wilful acts of his bailiff,45 and innkeepers and carriers are in the nature of insurers of property entrusted to their care.44 Joint tenants &c. should When there are several owners or persons chargeable as be joined. joint tenants or tenants in common in respect of their real property, though the action be in form ex delicto, they should all be made defendants, or the party who is sued alone may plead in abatement.45 When the action respects real property, the action should, in general, be against the occupier,46 and not against the owner, if the premises were in the possession of his tenant.47 When agent or servant liable. An action will lie against an agent or servant for tortious acts done at the command of the principal,48 and against a custom house officer seizing goods.49 However, for deceit in the sale of goods, and for false warranty in general, when the agent acted in pursuance of the direction of his principal, the action must be against the latter 50 and the servant or deputy B. 442. 3 Wils. 317. 341. 368. 1 40 1 B. & P. 404. 6 T. R. 411. 41 1 Taunt. 568. 1 East. 106. 3 Wils. 317. 1 Salk. 282. 1 Bl. Com. 431. 427 John. Rep. 390. 43 2 T. R. 154. 8 Ib. 431. 7 John. Rep. 35. Esp. Rep. 507. 16 4 T. R. 318. 1 Chit. Pl. 71. 47 Ib. 2 H. Bl. 350. 43 1 Wils. 328. 2 Str. 813. 3 Lev. 352. 2 Saund. 47. i. n. 1. but see 2 Mod. 242. 12 Ib. 488. EX DELICTO. cannot be charged as such for a mere non-feasance, but the DEFENDANTS action must be against the principal;51 but the deputy may be charged for a mis-feasance or mal-feasance, as a mere wrong doer.52 may be joint. In legal consideration, some torts are capable of being com- When torts mitted by several, while others are not; in the former case, joint actions may be brought, but in the latter, they must be separate.53 Where, in such cases, defendants are illegally joined, it is ground for demurrer, arrest of judgment or error; but the objection may be aided by taking a verdict against one only, or by the entry of a nolle prosequi before judgment as to the others.54 to be joined, For the torts of the wife, either before or after marriage, When wife she and her husband must be sued jointly.55 Where the tort &c. was the act of both, and in consideration of law might be committed by several, the husband and wife may be joined.56 If the wife be sued alone, she must plead it in abatement.57 mis-joinder, Where in point of law several persons may be jointly guilty Effect of of the same offence, the joinder of more persons than were liable constitutes no objection, and one of them may be acquitted and a verdict taken against the others,58 although they pleaded the general issue jointly;59 but not on a joint plea of 1 Chit. Pl. 81 82. 2 Wils. 227. 56 1 Vent. 93. Yelv. 106. 165. 58 8 East. 62. 2 Ib. 574. Cowp. 59 15 John. Rep. 224. DEFENDANTS justification, for there, if it be not supported as to all, neither of the defendants can be protected by it.60 EX DELICTO." and nonjoinder. On the other hand, if several persons jointly commit a tort, the plaintiff in general has his election to sue all or any of the parties, because a tort is in its nature a separate act of each individual; and therefore in actions in form ex delicto against one only, for torts committed by several, he cannot plead the non-joinder of the others in abatement, or in bar, or give it in evidence under the general issue; for a plea in abatement can only be adopted in those cases where regularly all the parties must be joined, and not where the plaintiff may join them or not at his election; and even if it be apparent on the record that the tort was jointly committed by the defendant and anoExceptions ther, no objection can be taken.62 Where the action is substantially founded on a contract, although it is in form tort, as in case against a carrier, it seems that the defendant may plead the non-joinder of his partners in abatement,63 and that if several persons are joined as defendants in such action, the plaintiff must show a joint liability in all or be non-suited. And there is a distinction between mere personal actions of tort and such as concern real property; for if one tenant in common only be sued in trespass, trover or case for any thing respecting the land held in common, he may plead the tenancy in common in abatement; but this rule does not apply where the title to land cannot come in question.66 to the general rule. Plaintiff can have but one satisfaction. If the plaintiff elect to bring separate suits, he may recover 60 14 John. Rep. 166. 61 1 Chit. Pl. 75. 3 East. 62. 1 Saund. 291. d. n. 4. 2 Ib. 117. a. 5 T. R. 649. 3 East. 70. 6 Taunt. 29. 6 John. Rep. 26. 1 Ib. 290. 2 Ib. 365. 383. 9 Ib. 294. 14. fb. 426. 62 1 Saund. 291. d. n. 4. 2 John. Rep. 365. 17 Ib. 143. 63 Salk. 440. pl. 1. 3 Lev. 258. 3 Mod. 321. 2 New. R. 365. 64 2 New Rep. 454. 12 East. 452. contra 3 East. 62. 65 1 Saund. 291. e. 5 T. R. 651. 7 Ib. 257. 2 East. 574. 66 14 John. Rep. 426. EX DELICTO. against each defendant, but he can have but one satisfaction; DEFENDANTS and satisfaction obtained from one defendant may be pleaded by the other in bar of the action against him.67 And sometimes a recovery against one will be a bar to an action against the others,68 or the court will stay the proceedings. 69 SECTION VII. OF MISTAKE IN THE FORM OF ACTION, AND OF THE ELECTION AND JOINDER OF ACTIONS. form of ac Its effects, be objected Of mistake in the form of action.] The consequences of Mistake in a mistake in the form of action, are very material:70 When the tion. objection appears upon the face of the declaration, it is ground and how to for demurrer, arrest of judgment, or error, but not of non-to. suit; but costs are not allowed when the judgment is arrested.71 When the objection is not apparent upon the pleadings, it must then be taken by motion for a non-suit, and in such case costs are allowed.72 If by either of these means the plaintiff fail in his action, and judgment be given against him for that reason, but not upon the merits, he may commence a fresh action, and the first can not be pleaded in bar.73 671 John. Rep. 290. 6 Ib. 26. 61 Chit. Pl. 76. 77. Cro. Jac. 73. 2 Bos. & Pul. 69. 70. 71. 1 Saund. 207. a. n. 2. Yelv. 68. Bul. N. P. 20. 3 Burr. 1345. 1 Bl. Rep. 387. 711 Chit. Pl. 193, 4. 1 B. & P. 476. 6 T. R. 125. Cowp. 407. 72 Cowp. 414. 407. 419. 6 T. R. 125. 8 T. R. 188. 1 East. 109. Camp. 256. 73 2 Saund. 47. 1. n. 1. 3 Wils. "1 Chit. Pl. 77. 2 B. & P. 71. 309. 1 Mod. 207. Vin. Abr. 76 T. R. 129. "Judgment," 2. 4. & pl. 3. |