*Proof of Inducement as to the Property or Thing affected.] If any special inducement as to the property or thing [*346] affected be stated in the declaration, the same, if material to the

action, must be substantially proved. A material variance between it and the proof would be fatal: ante, 339.

Proof of Inducement as to Plaintiff's krght or Interest affected.] If there be any special inducement stated as to this, the same, if material to the action, must be substantially proved. A material variance between it and the proof would be fatal; and, as to what is such variance, see ante, 340.

Proof that the Plaintiff's Right or Interest was such as to entitle him to maintain the Action.] It must be proved that the plt. had a legal right or interest in the matter or thing affected by the injury, at the time of such injury: Dawes v. Peck, 8 T. R. 330; Benjamin v. Bank of England, 3 Camp. 417. And persons having a mere equitable interest cannot, in general, sue, except against wrongdoers, when the plt. is in actual possession of the property or thing affected: 1 Saund. on U. & T. 222-3; Jones v. Jones, 7 T. R. 47; Allen v. Imlett, Holt, C. 641. Actions for all torts to the absolute rights of persons, as injuries to health, liberty, reputation, &c., must be in the name of the party immediately injured, as also actions for torts to relative rights: 1 Chit. Pl. 49, and cases there collected. A wife, child, or servant, cannot support any action for an injury to the person or property of the husband, parent, or master, as the law invests them with no relative legal rights in such person or property: 3 Bl. Com. 143; 1 Salk. 119. As to real property, corporeal proof of the plt.'s being in actual posses. sion, whether lawfully or not, will suffice to sustain a verdict, in an action for an injury committed by a stranger, or by any person who cannot establish a better title: Graham v. Peat, 1 East, 244; Lambert v. Stroother, Willes, 221; Harker v. Birkbeck, 3 Burr. 1563; 2 Str. 123; Cro. Car. 586; Philpott v. Holmes, Pea. Rep. 67; 1 Taunt. 83, 190-1-4; Dyson v. Collick, 5 B. & A. 600; Welsh v. Nash, 8 East, The party, however, must be in the personal or actual possession, or he must have the general property, in respect of which possession immediately follows, or he cannot maintain this action. A mere right to enter is not sufficient: Dyson v. Collick, 5 B. & A. 600. In case of real property, there is not that constructive possession as in that of personalty; and the party entitled to possession cannot maintain trespass for an injury to such possession, unless he has had actual possession, though he have the freehold in law: Com. D. Trespass, B. 3. A person having the immediate reversion, or remainder in fee or in tail, or for a less estate, may support an action on the case for waste, &c., if it be injurious to his reversionary interest: 2 Saund. 252, b. The absolute or general owner of personal property, having the right of immediate possession, may in general support an action for an injury thereto, though he have never had the actual possession; it being a rule of law that the property in personal chattels draws to it the possession: 2 Saund. 47, a. n. 1; Gordon v. Harper, 7 T. R. 12; 1 Bulst. 68-9. So, though at the time when the injury was committed the goods were in the actual possession of a servant, carrier, or other bailee, yet, if the

394.

general owner had the right of immediate possession, the action may be in his name, 2 Saund. 476, Gordon v. Harper, 7 T. R. 12; or it may be in the name of the person having the actual possession, but only a special property: 2 Saund. 47, c. d. But a mere servant, having only the custody of goods, and not responsible, cannot in general sue: ib. An assignee of a chose in action or chattel cannot, in general, sue for an injury thereto, committed before he became such assignee. Thus, an heir cannot maintain an action of waste committed in the time [*347] of his ancestor; *nor the grantee of a reversion, for waste committed before the grant, 2 Saund. 252, a; though a reversioner may, as we have seen, sometimes sue, when the injury is such as to effect the reversion; ante, 346. An assignee may, however, always sue for an injury committed after he became such assignee. In some cases, where plt. has assigned his interest in the thing affected, he may still sue in case for a consequential injury. Thus, where the lessee, by deedpoll, assigned his interest in the demised premises to A., subject to the payment of the rent and the performance of the covenants contained in the lease, and A. took possession and occupied the premises under this assignment, it was held, lessee might maintain an action upon the case, founded in tort, against A., for having neglected to perform the covenants whereby the lessee had been sued by the lessor, and sustained damages: Barnett v. Lynch, 5 B. & C. 608.

In the case of the death of the injured party, in torts, the general rule is, actio personalis moritur cum persona. And this rule seems to apply in all cases, whether the action be founded on personal injuries, or even on contracts, Kingdon v. Nattle, 1 M. & S. 355, except such as create an injury to the personal estate of the testator; because the executors and administrators are the representatives of the personal property, that is, the debts and goods of the deceased; but not of their wrongs. Therefore, where the damage done to the personal estate can be stated on the record, and increases the individual transmissible personal estate, the action remains to the executor or administrator; Chamberlain v. Williamson, 2 M. & S. 416. And it is on this principle that case or debt lies by the executor for an escape on final process, 4 Mod. 403, 12 ib. 71; or against the sheriff, for removing goods in execution, without paying a year's rent due to the testator: Palgrave v. Windham, 1 Str. 212. But, where the damage consists in previous personal suffering, as in all injuries affecting the life or health of the deceased, all such as arise out of the unskilfulness of medical practitioners, imprisonment of the party, brought on by the negligence of his attorney, through breaches of the implied promise by the persons employed to exhibit a proper portion of skill, &c., or the like are extinguished by death, and the executor or administrator cannot sue, ib., Sir Wm. Jones, 174, Latch, 168; and the stat. of 4 Edw. 3, c. 7, has made no alteration in the common law in this respect: 1 Saund. 217, n. 1.

Bankruptcy has the effect of passing to the assignees all rights of action, and every species of rights of which a profit can be made, as such rights are assignable at common law; and questions as to these rights seem to turn much upon the same principle as those which result to executors, &c. But for injuries of a personal nature, which are not the

subject of property, as slander, &c., Chamberlain v. Williamson, 2 M. & S. 413, Benson v. Flower, Sir. W. Jones, 215, ex. p. Charles, 14 East, 197, the bankrupt himself must sue: Webb v. Fox, 7 T. R. 391 ; Cullen, 414. So, insolvency passes the estate, effects, rights, &c., by i G. 4, c. 119, s. 7, &c., and differs little in its effect, as far as regards the right of suing in case from bankruptcy, except that, by the assignment at the time of the petition, the assignee takes only such property as the insolvent had at the time of the petition: Hepper v. Marshall, 2 Bing. 372; post, "Insolvent."

When there is a joint legal interest existing in two or more persons, who have received a joint damage, they should join in the action: 1 Saund. 291. So, part-owners of a ship or goods ought to join in an action against one who injures or takes them away: Childs v. Sands, 1 Salk. 32; 4 Mod. 176, 181; 3 Lev. 351. And, where defamatory words are spoken of partners respecting their trade, they may maintain a joint action for the slander; and it is not necessary for them to show the proportion of their respective shares: Forster v. Lawson, 3 Bing. 452; Cooke v. Batchelor, 3 B. & P. 150; 2 Saund. 117, a. If two persons obtain a mandamus, they may join in an action for a false return to it: 3 Lev. 362-3. So, where bail together employ an attorney to surrender their principal, one cannot maintain a separate ac- [*348] tion for negligence against him; and Mansfield, C. J., said, "The situation of Hill & Bailey (the bail) was the same; they were mutually responsible for each other; the act to be done would operate equally in favour of each; the one could not be relieved from his liability without the other:" Hill v. Tucker, 1 Taunt. 9; see Collins v. Barnett, cited in 3 Bing. 456: see cases where joint payment creates joint interest, Osborne v. Harper, 5 East, 225, Brand v. Boulcott, 3 B. & P. 235. Tenants in common should also join: Cro. El. 554. To constitute a joint legal interest, it must be in the same degree, as tenant and reversioner cannot join for damage to the inheritance, or copyholder and lord, &c. And, where the interest is several, yet plt. ought to join, if the cause of action be an entire joint damage. So, where several persons, called dippers, at Tunbridge Wells, who were chosen by the freeholders of the manor, &c., were disturbed by a person not duly appointed, against whom they joined in an action, it was held they should join; for, although the dippers were severally entitled to receive for their own several use such voluntary gratuities as the company were pleased to give them respectively, they were jointly concerned, as it was a hurt to them all: Weller v. Baker, 2 Wils. 423. So, if there be two ancient mills in a manor, at one or the other of which the tenants are bound to grind, the owners of both mills may join against a tenant for not grinding: 2 Saund. 115. And, in Collins v. Barnett, it was holden, that two persons might bring a joint action for maliciously holding them to bail, if the complaint in the declaration was confined to the expenses which they were jointly put to in procuring their liberty: p. Best, C. J., cited in Forster v. Lawson, 3 Bing. 456. In actions in torts, if a party who ought to join be omitted, it can only be taken advantage of by plea in abatement, Addison v. Overend, 6 T. R. 766; and it is not, as in contracts, the cause of nonsuit for nonjoinder; and so it is with tenants in

common: Cro. El. 554; ib. 770, 554. And, if one or two part-owners of a chattel sue alone for a tort, and the deft. do not plead in abatement, the other part-owner may afterwards sue alone: Sedgworth v. Overend, 7 T. R. 279.

In the case of an executor, administrator, heir, or devisee, suing for a tort, see post, "Executor and Administrator," "Heir," "Devisee." As to actions by husband and wife, post, "Husband and Wife.”

Proof of the Injury.] The injury must be proved to have been committed, as stated in the declaration; and, as to what is a variance, see ante, 340. This must, in general, be proved by persons present when the injury was committed, or by deft.'s admissions.

Proof that the Deft. committed the Injury.] It must be proved that the deft., or what is tantamount thereto, the deft.'s agent, committed the injury. All natural persons are liable for injuries resulting from their tortious acts, not grounded on, or arising from a contract: 1 Rab. 778, 913-4; 1 Lev. 169. Therefore, an infant, or feme coverte, is liable for her own tortious acts, though, indeed, a feme coverte cannot be a tort feasor, either by prior or subsequent assent, Co. Lit. 180-6, n. 4; Jennings v. Randall, 8 T. R. 336; and a lunatic is liable in case for any injurious acts committed by him, though he could not be punished criminaliter, from the absence of criminal intention: Bac. Ab. Tres. G. Jar. E. Hob. 134; Haycraft v. Creasy, 2 East, 104.

Corporations are also liable for damages for torts: thus, where a public company lay down pipes so negligently, that an individual, passing along the streets, receives an injury, they are liable: Matthews v. West London Water Works, 3 Camp. 403; Gibson v. Inglis, 4 ib. 72; Yarborough v. The Bank of England, 16 East, 7; Bush v. Steinman, 1 B. & P. 405; Duncan v. Surrey Canal, 3 Stark. 50; see post, tit. "Corporations." Judges and justices of the peace, Bonnell

v. Beighton, 5 T. R. 186, 1 Ld. Raym. 466, Warne [*349] *v. Varley, 6 T. R. 449, 3 M. & S. 425; commissioners of bankrupts, Dodswell v. Impey, 1 B. & C. 163; the attor ney-general, Johnson v. Sutton, 1 T. R. 513, 335; or superior naval or military officers, ib., acting within the scope of their authority, are not liable. And, in general, where parties act, bona-fide, in the discharge of a public duty, they will not be liable, Sutton v. Clarke, 6 Taunt. 29, 2 D. & R. 353, Bl. R. 1141, Bolton v. Crowther, 2 B. & C. 703, Pike v. Carter, 3 Bing. 85, 2 Bing. 163; but if, as such, they exceed their authority, or act arbitrarily, carelessly, or oppressively, they will be liable: ib., 3 Wils. 461; Leader v. Moxon, 2 B. & R. 924; Thompson v. R. Ex. Assur. Com., 16 East, 214; Jones v. Biril, 5 B. & A. 837; 3 Bing. 85. So, commissioners of prize-money are liable for not adjudging a prize, &c.: Chinotti v. Bumstead, 6 T. R. 646. And a justice of the peace, for refusing an examination on the stat. of hue and cry: 1 Leon. 323. And the Bank of England is liable for delay, or other misconduct, as much as a private banker: Sutton v. Bank of England, 1 C. & P. 193, 2 Bing. 411, s. c.

If one tenant in common misuse, spoil, destroy, or convert to his own use that which he has in common with another, he is answerable to the other in an action, as for misfeasance: p. Ld. Kenyon, C. J.: Martyn v.

Knowlys, 8 T. R. 146. And so with joint-tenants, though they cannot be sued for taking away the chattel: 2 Saund. 47, f. g. Owners of a party wall are liable, the one to the other, for tort: they are not, however, tenants in common: Matts v. Hawkins, 5 Taunt. 20.

A principal or master is liable for the tortious acts of his servants in all matters done by them in the exercise of the authority that he has given them, whether such servant be immediately retained by himself, or by those whom he has employed; and, however remote the sub-agent may be whose unskilfulness or negligence, &c. was the cause of the injury, the liability may always be traced to the principal, from whom the authority moved: Bush v. Steinman, 1 B. & P. 444; 5 B. & C. 547; Morley v. Graisford, 2 H. Bla. 442; 3 Wils. 317. But the party would not be liable unless the person committing the injury acted at the time as his servant, 1 East, 106; and on this point the liability often chiefly depends. And, in Lougher v. Pointer, 5 B. & C. 547, where the owner of a carriage hired of a stable-keeper a pair of horses to draw it for a day, and the owner of the horses provided a driver, through whose negligent driving an injury was done to plt.'s horse, the judges of K. B. were divided as to the liability of the owner of the carriage. In Sammell v. Wright, 5 Esp. Rep. 263, where the horses were hired to go to Windsor, the owner of the horses was held liable, because they were under the care and direction of his servants. The carriage belonged to the traveller, the Marchioness of Bath. In the case of Sir Henry Houghton, where he hired horses to draw his carriage travelling post, he was held not to be answerable for accidents produced by the misconduct of the drivers: cited 4 B. & C. 550, and referred to by Abbott, C. J., 575. And, in Dean v. Branthwaite, where a dispute arose between the owner of the carriage and the owner of the horses, which he hired, Ld. Ellenb. said, "that a person who hires horses under such circumstances has not the entire management and power of them, but that they continue under the power and control of the stable-keeper's servants, who were entrusted with the driving. And, in Croft v. Alison, 4 B. & A. 590, where the plts. hired a chariot for the day, appointed the coachman, and furnished the horses, it was held they were correctly described as owners and proprietors. But, if a servant wilfully commit an injury, the master is not liable: 1 East, 106. "Therefore, if a servant driving a carriage, in order to effect some purpose of his own, wantonly strike the horses of another, the master is not liable; but, if, in order to perform his master's orders, he strikes, but injudiciously, and in order to extricate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being *an act done in pursuance of the servant's employment:" p. cu- [*350] riam, Croft v. Alison, 4 B. & A. 592.

An agent or servant cannot, in general, be sued for any neglect or nonfeasance which he is guilty of, when it is committed on behalf of, and under the express or implied authority of, his master: 12 Mod. 488; Say. 41; Wilson v. Peto and others, 6 Moo. 47. Thus, if a coachman lose a parcel, his master alone is liable; so, a servant is not liable for deceit on the sale of goods, or for a false warranty, Co. D., Case for Deceit, B. 3 P. W. 379; nor can an action be supported against an at