torney for a malicious arrest, 1 Mod. 209, Roll. Ab. 95, Barker v. Braham, 3 Wils. 379, Carrol v. Bird, 2 Esp. Rep. 202, unless he exceed the line of his duty: Crozer v. Pilling, 4 B. & C. 26. And, where under-sheriffs or bailiffs, acting under the express or implied authority of the sheriff, Taylor v. Riley, 9 Price, 387, Bowden v. Waithman, 5 Moo. 183, commit a tort, the action should not be against them, but the sheriff: Cameron v. Reynolds, Cowp. 403; 2 T. R. 151; Sanderson v. Baker, 2 W. Bla. R. 832, 911. And no action is sustainable against an intermediate agent for the negligence, &c., of a sub-agent, but the principal is liable, Stone v. Cartwright, 6 T. R. 411, Bush v. Steinman, 1 B. & P. 405, Cameron v. Reynolds, Cowp. 406, 2 B. & P. 438; nor is a person employed to do work for another liable, though the work be so badly done as to injure a third person, ib.; but, if he personally interfered and caused the injury, he would be liable: Wilson v. Peto, 6 Moo. 47; 2 D. & R. 33. As to agents of government discharging a public duty, and not acting for their own benefit, they are not liable for the misconduct of such persons as they are obliged to employ; and the doctrine of respondeat superior does not apply, Hall v. Smith, 2 Bing. 159, Nicholson v. Mounsey, 15 East, 384; but the action must be against those persons whose negligence occasioned the injury. Agents, however, are liable who order any thing to be done not within the scope of their authority, or are themselves guilty of negligence in doing that which they are empowered to do: 2 Bing. 159.

The liability attaching to the owner of animals varies with their particular species. In the case of such as are not naturally inclined to commit mischief, as dogs, horses, and other domestic animals, a previous mischievous propensity must be shown, and the scienter clearly established, or that the injury was attributable to that or some other neglect on the part of the owner; and case, and not trespass, is the proper remedy: 12 Mod. 333; Mason v. Keeling, 1 Ld. Raym. 608; Cro. Car. 254; 2 Salk. 662. With respect to cattle, as their propensity to roam and trespass on other persons' land is notorious, the owner will be answerable, ib., Rex v. Huggins, 2 Ld. Raym. 1583; but no action lies for damage done by animals feræ naturæ escaping from the land of one person to that of another: Cro. Car. 387; 1 Burr. 259; 5 Co. 104, 6; see further, post, "Nuisance.'

In cases where a man is in possession of real property, he must take care that his property is so used and managed that other persons are not injured, and that whether his property be managed by his own immediate servants, or by contractors, or their servants. The injuries done upon land or buildings are in the nature of nuisances, for which the occupier ought to be charged, when occasioned by any acts of persons whom he brings upon the premises: p. Littledale, J., Laugher v. Pointer, 5 B. & C. 560. In Littledale v. Ld. Lonsdale, 2 H. Bla. 299, and Stone v. Cartwright, 6 T. R. 411, it was held, that the owner of a mine (and not his agent) is answerable to the person whose property may be injured by the improvident manner of working it, on the principle that "whatever is done for the working of my mine, or the repair of my house, by persons mediately or immediately employed by me, may be considered as done by me. I have the control of all that belongs

to my land or my house; and it is my fault if I do not so exercise my authority as to prevent injury to another :" p. Ab- [*351] bott, C. J., 4 B. &C. 576. But to the mere ownership of movable property this liability does not attach; as it may be sent out into the world, and conducted by other persons. Actions of this nature should therefore generally be against the tenant or person in possession, Chietham v. Hampson, 4 T. R. 318, unless the landlord superintended the repairs, &c., Leslie v. Pounds, 4 Taunt. 649; and, if the landlord erects the nuisance and demises, he is liable, as the demise is a continuation of the nuisance, 2 Salk. 460, Bush v. Steinman, 1 B. & P. 409; or where he covenants to repair: Payne v. Rogers, 2 H. Bla. 349.

With respect to the number of the parties to be sued, and who may be joined, where different persons have been jointly concerned in a tortious act, the party injured may bring one action against all jointly, or may sue each in a separate action: Sutton v. Clarke, 6 Taunt. 34; Scott v. Godwin, 1 B. & P. 73. And in these injuries, as, for composing and publishing a libel, 2 Saund. 117, 2 Burr. 985, for not setting out tithe, Carth. 361; so, if two persons procure a person to be indicted falsely, Latch, 262; so against bailiffs or other officers for a joint tort: Cowp. 192. All persons liable, as co-proprietors, for the acts of their servants or partners, may be joined, Moreton v. Hardern, 4 B. & C. 228; as the act of one is the act of all the partners. And, in these cases, the joinder of more persons than were liable constitutes no objection, and one may be acquitted, and a verdict taken against the others, 3 East, 62, 1 M. & S. 589, but not after judgment: Tidd, 711, 903. If the plt. elect to sue one only for a tort committed by several, he cannot plead the nonjoinder of the others, or take any advantage of such nonjoinder: Sutton v. Clarke, 6 Taunt. 29; 1 Saund. 291, d.; Mitchell v. Tarbutt, 5 T. R. 649. But this only applies to the case of torts; for it appears that, if the case be grounded on a particular contract, the action will be subject to the same rules of law as if brought in assumpsit: Bretherton v. Wood, 3 B. & B. 62; Leslie v. Wilson, ib. 171; Powell v. Layton, 2 N. R. 365; Max v. Roberts, 12 East, 89, 365; Govett v. Radnidge, 3 East, 62. Sec ante. A recovery against one of several parties to a joint tort often precludes from proceeding against another party not included in the former action; as, where plt. had recovered against his servant for leaving his service, it was held he could not recover against a person who enticed him away Bird v. Randall, 3 Burr. 1345, 1 W. Bl. R. 387, s. c. ; and it is usual to apply to the court to stay the proceedings: Williams v. Brown, 2 B. & P. 71. But the evidence. should be the same, and not on different occasions: ib., Gregson v. MTaggert, 1 Camp. 415. Where the torts are distinct, a joint action against two or more cannot be maintained, as two persons cannot be separately liable unless they would be jointly liable; Laugher v. Pointer, 5 B. & C. 559. So, no action lies against several persons for speaking the same words, as the words of one cannot be the words of another: Palm. 313; Cro. J., 647; 1 Bulst. 15. And, if several persons be joined where the tort could not in point of law be joint, they may demur, and, after verdict, they may move in arrest of judgment, or bring a writ of error, Barnard v. Gostling, 1 N. R. 245, 2 Saund. 117, &c.; but the VOL. I.

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plt. may obviate the objection by taking a verdict against one only, or by assessing the damages separately, and entering a nolle prosequi before judgment. Where the action is against a tenant in common, joint tenant, or co-parcener, for any thing respecting their land, it should be joint, and it will be bad in abatement: 1 Saund. 291, e.

Though an assignee is not liable for torts before he came to the estate, he will be, in many cases, during his possession, and even after he has assigned his interest; and there is no privity of estate. Therefore, where a lessee by deed-poll assigned his interest in the demised premises to A., subject to the payment of rent, and the performance of the covenants contained in the lease, A. took possession and occupied the

premises under this assignment, and, before the expiration of [*352] the term, assigned to a third person, and the lessor sued the

lessee for breaches of covenant committed during the time that A. continued assignee of the premises, and recovered damages against the lessee; it was held, that the lessee might maintain an action on the case, founded in tort, against A., for having neglected to perform the covenants during the time he continued assignee, whereby the lessee sustained damage: Burnett and others v. Lynch, 5 B. & C. 589. And, where a tenant for years erects a nuisance, and makes an under-lease to B., an action lies against either: 2 Salk. 460. Case, in nature of waste, lies against a tenant for years after the expiration of his term: Kinlyside v. Thornton, 2 W. Bl. R. 1111.

The proof for plt., in an action against executors, bankrupts, assignees of bankrupts, insolvents, husband and wife, &c., will be found under those titles.

Proof of Damages.] The plt. must, in all cases, be prepared to prove the amount of the damages he has sustained, that they were sustained before action brought, or before the time when the declaration appears to have been filed: 2 Saund. 171, n. If any have accrued since, if deft. can be procured to consent at the trial to their being taken into consideration by the jury in their verdict, on condition of no action being brought for them, this is desirable. The nature of the proof must depend on the facts stated in the declaration. The statement of the damages being larger than the proof will not prejudice.

Proof under SPECIAL PLEA or Defence.] Where an issue is taken on a special plea, and the general issue is also pleaded, the plt. must not only be prepared to prove all that is required of him by the general issue, but also what is required of him in the issue taken on the special plea. When a special plea is pleaded without the general issue, so as to admit all the other facts but what are desired by such special plea, then nó proof of such admitted facts need be adduced: and the proof will, in general, then consist of an answer to the special plea, and the amount of the damages. As to special references, see the titles thereof throughout the work.

As to who is to begin to prove the issue, see ante, 152.

Evidence for Defendant.

We have already seen under what plea deft. may avail himself of his defence, ante, 344-5, and evidence should be adduced accordingly.

Defences.] The several defences consist in denying, and, as far as possible, disproving, 1st, the plt.'s right to sue, his legal right not having been affected, ante, 346; or to show that too many persons are plts., ante, 347; or that plt. is a mere assignee, and has no right to sue, ante, 346-7; or that the party who should have sued is dead, ante, 347; or that the plt. is disabled from suing, as being a bankrupt, insolvent, ante, 347, feme coverte, &c.: see those titles. 2. That the defendant was not the party who committed the injury, ante, 348; or that he was a mere agent, ante, 350; or that the real wrong-doer is dead; or that the deft. is discharged by bankruptcy, insolvency, or is a feme coverte: see those titles. 3. That the action is misconceived, and should not have been in case, ante, 336; or that it is brought too soon. 4. That there is a variance between the inducement or injury, &c., and the proof. 5. That deft. is discharged by the Statute of Limitations, award and satisfaction, from recovery, &c.: see those and other titles. 6. Deft. should be prepared to reduce the damages.

Decree or Judgment in; Effect and Proof of.] A decree or judgment in this court is admissible in evidence in the same manner as judgment in other courts: B. N. P. 243; post, "Judgment.”

It may be proved by an exemplification, or by a sworn copy, or by a decretal order in paper, with proof of the bill and answer, Trowel v. Castle, 1 Keb. 21, B. N. P. 244; but it has been held, that the bill and answer need not be proved, if they are recited in the decretal order: ib., Com. D. Ev. C. 1. However, the rule generally laid down seems to be, that where a party intends to avail himself of the contents of a decree, and not merely to prove an extrinsic fact (as that the decree was made by the court), he ought regularly to give in evidence the whole proceeding on which the decree is founded. "The whole record," says C. B. Comyn, "which concerns the matter in question, ought to be produced:" Com. Dig. Ev. A. 4; 1 Phil. Ev. 373.

Bill in, Effect and Proof of.] A bill in chancery is only evidence, in the courts of law, to show that such a bill did exist, and that certain facts were in issue between the parties, in order to introduce in evidence the answer, or the depositions of witnesses: Ld. Ferrers v. Shirley, Fitzgib. 196; B. N. P. 233. It is not admissible to prove any facts, either alleged or denied, in the bill; therefore, a bill in equity, or depositions, cannot be received in evidence on the trial of an action of ejectment against a party not claiming or deriving in any manner under the plt. or deft. in equity, either as evidence of the facts therein deposed to, or as declarations respecting pedigree: Bowerman v. Sybourn, 7 T. R. 2. But Ld. Kenyon is reported to have admitted a bill filed by an ancestor to be evidence of a pedigree there stated as a declaration in the family, Taylor v. Cole, ib. 3, a.; and there may be other exceptions to the above general rule, against the admissibility of the bill as evidence.

As to proof of the bill, proof of a decree reciting the bill and answer will suffice: Com. D. Evid. C. 1. Evidence of the bill only will be of no avail; the subsequent proceedings also, or the answer, must be proved: B. N. P. 235; 1 Sid. 221; Bowerman v. Sybourn, 7 T. R. 3, supra.

Answer in, Effect and Proof of] An answer in chancery is evidence as an admission upon oath, Gilb. Ev. 106, and is strong evidence against the party making it, but is not evidence against other parties: Goodright v. Moss, Cowp. 591. Therefore, if a person makes an admission in his answer which is prejudicial to his estate, it is not evidence, against his alienee, Salk. 286, unless the plt. himself make it so, by producing it first: B. N. P. 238. As, in an issue out of chancery to try the terms of an agreement, which was proved by one witness, but denied by the deft., the witness being dead before the trial, the plt. was under the necessity of producing the bill and answer, in order to read his deposition, and by that means made the whole answer evidence, which was accordingly read by the deft.: Bourn v. Sir Thomas Whitmore, Salop, 1747. The answer of a guardian, though purporting to be that of the minor, is not evidence against the minor. But it was held, that an answer, purporting to be an answer of a minor by a mother and guardian, may be read against the mother in another cause, in which she is defendant in her own capacity: Beasley v. Magrath, 2 Sch. & Lef. 34. An answer by one deft. is not evidence against his co-deft., as no one is bound by the acts or declarations of another, without his assent: Wych

v. Meal, 3 P. Wms. 311; 12 Ves. 361. But an admission, [*354] by one of two partners concerning the *partnership liabilities,

is good evidence to charge the other partner, in an action against him alone: Wood v. Braddick, 1 Taunt. 104; Grant v. Jackson, Pea. 203; Lucas v. De la Cour, 1 M. & S. 250. The answer of a party is evidence against one who claims under him. Thus, in an action for setting out tithe, copies of a bill and answer in a suit by the vicar for the tithe hay, against J. C., then occupier of the close, and from whom the deft. purchased, denying the vicar's right, and setting up a right in the ancestor of the plt., were held to be evidence against the deft.: Countess of Dartmouth v. Roberts, 16 East, 334. It seems doubtful whether the answer of a married woman can be used in evidence against her, in an action after the husband's death, on the ground that, being under the control of the husband, she is not a free agent: Wrottesley v. Bendish, 3 P. W. 237.

An answer must be taken entire and unbroken; therefore, the party who reads an answer makes the whole of it evidence, Bac. Ab. Evid. 622, 5 Mod. 9, 3 Salk. 153; and, if, upon exceptions taken, a second answer has been put in, the deft. may insist upon having that read, to explain what he swore in the first answer: B. N. P. 287. Where the answer charges the deft. by the admission of one fact, and also discharges him by the statement of a distinct and further fact, the rule has been said to be, that what is admitted need not be proved by the plt., but the deft., must make out his fact in discharge: Bowerman v. Sybourn, 2 Esp. Rep. 499. Although deft. may insist on having the whole read, that, by comparing the parts with each other, the precise