port an action, without proof that the 32. And it is no defence, upon the geattorney was properly constituted by neral issue, that the goods were frauduthe defendant, or that the latter was lently mixed by the plaintiff with those within the jurisdiction of the colonial of A. for the purpose of screening the court. Malony v. Gibbons, 2 Campb.goods of the latter, which the defendant 502. Ellenborough, C. J. 1810. had a right to take under a commission

26. The law implies no promise to of bankrupt against him, unless the repay a sheriff the expenses incurred in goods, when mixed, could not be distinkeeping possession under a fi. fa. ulti-guished. Ibid.

mately abandoned on account of the N. But the fraud may be pleaded refusal of an indemnity. Bilke v. Have- specially. Grome v. Grome, Palm. 395. lock, 3 Campb. 374. Ellenborough, And see Mayor of Carlisle v. Wilson, 5 East, 2, 7; 2 Bla. Comm. 405.

C. J. 1813.

27. Nor will an action lie even where 33. A surviving partner may declare the defendant has recognized the claim generally upon a contract entered into by paying money on account. Ib. with him and his deceased partner, as a 28. A party injured by the sentence contract made with himself alone. Ditchof an ecclesiastial court, exceeding its burn v. Spracklin and others, 5 Esp. jurisdiction, may maintain an action 31. Ellenborough, C. J. 1803.

Ellenbo

against the judge. Beaurain, gent. v. Acc. Richards v. Heather, 1 B. and Sir W. Scott, 3 Campb. 388. A. 29. Read's case, Sav. 92, pl. 171; rough, C. J. 1813. Co. Litt. 37 b; Brereton et ux. v.

And see Doctor and Student, dial 2. Noy's Rep. 135; 2 Vin. Abr. Actions cap. 32,

B. NOTICE OF ACTION, (And see post, ATTORNEY, pl. 5.)

29. A letter from an attorney, stating that he is instructed to take legal proceedings, unless a demand be complied with, is not a notice of action. Lewis v, Smith, Holt. 27, Gibbs, C. J. 1815.

C. PROPER PARTIES.

C. (a) Plaintiff. (And see post, TRESPASS, pl. 17, 18.)

30. On the cutting down of timber on lands demised for years, the legal property vests in the reversioner, who alone can maintain trespass for an asportation. Evans v. Evans, 2 Campb. 491. Lawrence, J. Monmouth, 1810.

(Joinder) D. d. pl. 16; Hyat v. Hare, Comb, 383. recognized, 2 T. R. 479. And see 1 Saund. 291, f. g. Greenway v. Hornblow, Hardress, 221; post VARIANCE, pl. 39. F, N. B. 55 ̊C., (b); Holdwich v. Chofe, Aleyn, 41; 5 Ves.

295.

feoffment to himself without naming his A surviving feoffee may plead a joint feoffee; Co. Lit. 185, and cases

there cited.

34. But a surviving lessor cannot recover on a count for use and occupation in which his deceased co-lessor is not named. Lazarus v. Simmonds. Abbott, J. London, 6 May, 1818.

S. C. By the name of Israel v. Sim¬ mons, 2 Stark 356. And the court refused a rule to set aside nonsuit on the have declared as surviving lessors, or ground that the plaintiffs should either have stated that the defendant was indebted to the plaintiffs for use and And see Berry v. Herd, Palm. 327; occupation, by the permission and sufCro. Car. 242; 7 T. R. 13; Selw.ferance of them and the deceased. Ibid. 1191. Acc. 2 Saund. 121, n. 1; 2 M and S. 31. A furniture broker, to whom goods 25 per Le Blanc, J. Acc. as to declaraare sent on sale or return, has a special tion against a surviving partner, Tessard property therein, which, coupled with v. Warcup, 2 Mod. 279, 280; Spalding the actual possession, will enable him to v. Mure, 6 T. R. 363, 5.; Com. Dig. maintain trespass in his own name. Col- Abatement, F. 8. will v. Reeves 2 Campb, 575, Ellenborough, C. J. 1811.

35. If two agents enter into a contract

in their own names under a penalty, 43. The nonjoinder of a dormant partfor the sale and purchase of an estate, ner is no ground of nonsuit. Leveck semble, that an action on the contract and Pollard v. Shaftoe, 2 Esp. 468. must be brought in the name of one Kenyon, C. J. 1796. agent against the other. The Duke of Norfolk v. Worthy, 1 Campb. 337. Ellenborough, C. J. 1808.

S. P. Lloyd v. Archbowle, 2 Taunt. 324; Mawman v. Gillett. Ibid. 325, n. 44. A. demised to B., C., and D., jointly; 36. But where the contract is re- B. and C., without the privity of A., scinded, or cannot be performed, the released their interest to D., who had deposit may be recovered by the vendee exclusive possession; A. distrained goods against the vendor, without shewing that put upon the premises by E., who had the amount has been paid over. Ibid. notice of the release, for rent due from Acc. Cary v. Webster, 1 Stra. 480. B., C., and D. It was held that a joint And see Flewellin v. Rowe, 1 Bulst. 18; action would not lie against B., C., and 2 Saund. 47 e. D. for money paid by E. to redeem the 37. A bargeman who carries malt be-distress. Exall v. Partridge Jones, et tween buyer and seller, may sue the alt. 3 Esp. 8. Kenyon, C. J. 1796. former, on an implied undertaking to But the court of K. B. decided, that return them within a reasonable time they were jointly liable, and set aside Terry v. Barker, 2 Stark. 172. Ellen-nonsuit. Ibid. and 8 T. R. 309. borough, C. J. 1817.

C. (b) Defendant.

(And see ante B. (a) pl. 34 n.)

And see Jenkins v. Tucker, 1 H. Bla. 90, 3. Rex v. Inhabitants of Bridgwater, 3 T. R. 550, 1 Child v. Morley, 8 T. R. 610, 4.

38. If the owner or hirer of a carriage 45. If several persons club for the is driving it when an accident happens, purpose of buying coals to be divided in a mere passenger is not liable. Davey certain proportions amongst them, one v. Chamberlain and another, 4 Esp. member of the club cannot bring a se229. Ellenborough, C. J. 1802. parate action for the non-delivery of his 39. But where a carriage is hired by allotment. Everett, qui_tam. v. Tintwo persons, and used by them jointly, dall, 5 Esp. 169. Eilenborough, C. J. one is answerable for an injury occa-1804. sioned by the unskilful driving of the 46. By the usage of the herald's office, the herald and pursuivant in atten

other. Ibid.

40. If A. is riding on the wrong side dance, share the profits of business begun of the road, but leaves convenient space whilst they are jointly on duty. Held, for a carriage to pass him, and B. wan-that they may join in an action upon a tonly or negligently drive against him, contract for work and labour entered into the latter is responsible for the event. with one of them. Townsend and anClay v. Wood, 5 Esp. 44. Ellenborough, other v. Neale, 2 Campb. 190. EllenC. J. 1803. borough, C. J. 1809.

41. A., jointly with others, employs B. to sink a sewer, which is left open; C. falls in. A. is liable to C., and may be sued alone; but he has his remedy over against B. Sly v. Edgley, 6 Esp. 6. Ellenborough, C. J.

D. JOINDER IN ACTION.

D. (a) Plaintiffs.

47. Three persons give their joint and several bond to the sheriff to indemnify him against an act in which they are scverally interested. Two pay the whole. They cannot maintain a joint action against the third for a contribution. Kelby and Vernon v. Steel, 5 Esp. 194. Ellenborough, C. J. 1805.

Acc. Brand v. Boulcott, 3 Bos. and Pull. 235. And see Grahamv. Robertson, 42. Though articles of partnership 2 T. R. 282; Osborne v. Harpy, 5 East, give a new partner a share in past trans-225, S. C. 1 Smith, 411.

actions, he cannot join in suing upon a contract made before he became a

partner. Wilsford et alt, v. Wood, 1 Esp. 182. Kenyon, C. J. 1794.

D. (b) Defendants.

48. To charge A. and B. as partners, the record of an issue between A. and B.

directed for the purpose of trying the shares only. Brown v. Doyle and others, fact of the partnership, is evidence. 3 Campb. 31. Ellenborough, C. J. 1811. Whately v. Menheim and Levy, 2 Esp.

608. Kenyon, C. J. 1797.

E. FORM OF ACTION.

E. (a) Account, or assumpsit. (And see 2 Vin. Abr. 3. Keilw 77 b.)

59. Held that the only remedy at law upon an account current between mer

49. Where to a declaration on a joint contract, one of the defendants pleads infancy, the plaintiff cannot enter a nolle prosequi as to the infant. He must discontinue, and commence a new action against the adult. Chandler v. Parkes and chants is an action of account. In asDankes, 3 Esp. 76. Kenyon, C. J. 1800. sumpsit the plaintiff will be nonsuited. 50. S. P. ruled in Jaffray v. Frebain, Scott v. M'Intosh, 2 Campb. 238. EllenWilson and Black, 5 Esp. 47. Ellenbo-borough, C. J. 1809. rough, C. J. 1803.

S. P. Lincoln v. Parr, 2 Keb. 781. And see Boulter v. Ford, 1 Sid. 76. And see the distinction in Farrington S. C. 1 Keb. 284. Blake's case. 1 Sid. v. Lee, 1 Mod. 269; Wilkin v. Wilkin, 378; Noke v. Ingham, 1 Wils. 89; Teed 1 Salk, 9; Poulter v. Cornwall, ibid; v. Elworthy, 14 East, 210. 3 Taunt. 307, Sandys v. Blodwell, W. Jon. 401. See 51. Where three persons are sued also Ouston v. Ogle, 13 East, 538. jointly in trespass, the plaintiff can only Beawes L. M. 50. Co. Litt, 146 a. But recover for those injuries in which they see Tomkin v. Willshear, 5 Taunt. 431, were all concerned. Aaron v. Alex- contra. ander, Crowley, and Solomons, 3. Campb. 35. Ellenborough, C. J. 1811.

Sed vide Tidd, 866, 7.

52. To entitle the plaintiff to proceed for an injury with which only one or two of the defendants are chargeable, he must suffer the rest to be acquitted. Ibid.

53. And in this case the judge will certify, under 8 and 9 Will. 3. cap. 11, that there was a reasonable cause for making them defendants. Ibid.

E. (b) Assumpsit, or covenant. (And see COVENANT, C.; Deed, A. 1. 2 Vin. Ab. 4.)

60. If a feme covert, without authority, contract with a servant by deed, the latter, after performing the service, may sue the husband in assumpsit. White v. Cuyler, 1 Esp. 200. Kenyon, C. J.

1794.

54. It is in the discretion of the judge And the court of K. B. discharged a whether he will direct the acquittal of a rule for setting aside a verdict for the co-defendant, in tort,against whom no evi-plaintiff. Ibid, and 6 T. R. 176. dence has been given at the close of the plaintiff's case. Davis v. Living, and others. Holt 275. Gibbs, C. J. 1816.

And see Brown v. Benson, 3 East, 333. 61. An indenture between A. and B. is executed by A. only. He cannot sue B. 55. Sheriff may sue two parliamentary on the deed, but must bring assumpsit. candidates upon an express joint promise Sutherland v. Lishnam, 3 Esp. 42. the expense of certain prepara-don, C. J. 1799.

to pay
tions for the election. Wathen v. San-

El

And see 2 Stra. 744, Chesman v. dys and another, 2 Campb. 640. Law-Nainby: Brett v. Cumberland, 3 Bulst. rence, J. Gloucester, 1811.

56. But semble, that where the nature

163. 3d resolution.

talus.

of the preparations has not been previ-E. (c) Assumpsit, special, or indebiously settled, and no joint contract has been made, the sheriff must sue each candidate separately upon 18 Geo. 2. cap. 18.

Ibid.

(And see Bills and Notes, I. (d); Gaming, A. (a) 2 a; Vendor and Pur

57. Persons dining together at a ta-chaser, C., D., F.) vern, are jointly liable for the whole bill.

62. Indebitatus assumpsit does not lie Foster v. Taylor, gent. 3 Campb. 49. on a collateral promise to pay for goods Ellenborough, C."J. 1811. sold to a third person. 58. But semble, that officers messing thorpe, 2 Campb. 215. together, are liable for their respective C. J. 1809.

Mines v. Scul-
Ellenborough,

Sed vide Plowd, 183. Vide etiam, 1 Saund. 211 a, b.

v. Bray, 5 Esp. 18. Ellenborough, C. J. 1803.

63. Where goods sent on sale or return And see M'Manus v. Cricket, 1 East, are not returned within a reasonable 106; Huggett v. Montgomery, 2 N. R. time, the value may be recovered in an 446. action for goods sold and delivered. Bailey v. Gouldsmith, Peake 56. Ken- servant, the remedy against the master yon, C. J. 1791. would be case. Leame v. Bray, ubi

69. If the carriage were driven by a

64. Where goods are sold at credit, and supra. the vendor discovers that the purchase is fraudulent, he may sue the vendor with-master was driving. Ibid. out waiting the expiration of the credit. De Symons v. Minchwick, 1 Esp. 430. Eyre, C. J. 1795.

70. It will not be presumed that the

65. If the vender of an estate have not such a title as, by the conditions of sale, he engaged to make to the purchasers, the latter may recover back the deposit without declaring on the special contract. Farrer v. Nightingale, 2 Esp: 640. Kenyon, C. J. 1798.

And see Johnson v. Johnson, 3 Bos. and Pul. 162, 6; Cripps v. Read, T. R. 606; Giles v. Edwards, 7 T. R. 181.

E. (d) Replevin, or detinue.
(See REPLEVIN, post.)
E. (e) Replevin, or trover.
(See REPLEVIN, post.)

E. (f) Trespass, or case.
(And see Fitz Trespas, 241, 4; 2 Vin.
Abr. 1, 6; 2 Saund. 47 k; F. N. B. 168
c; ib. 173 E. note (a); ib. 178 H.)

66. If A. even carelessly drive against B.'s horse, it is trespass. Sheldrick v. Abery, et alt. 1 Esp. 55. Kenyon, C. J. 1793.

67. Ruled, that if A. lay hold of B. and give him in charge to a constable on a mistaken suspicion of felony, B. may maintain case, but not trespass against A. Stonehouse v. Elliott, 1 Esp. 272. Kenyon, C. J. 1795.

S. C. not S. PP. 3 East, 598.

71. A.'s horses are hired by B.; C. drives a cart against them; A.'s remedy is case for the injury done to his reversionary interest. Hall v. Pickard, 3 Campb. 187. Ellenborough, C. J. 1812. Acc. Gordon v. Harper, 7 T. R. 9.

72. But a stable keeper who lets out a chaise and horse, driven by his own servant, has such a possession as will enable him to maintain trespass for an injury done even by the hirer. Dean v. Branthwaite, 5 Esp. 35. Ellenborough, C.

J. 1803.

73. Case, for injuring the plaintiff's reversionary interest, lies for voluntary waste committed by the tenant after the expiration of a notice to quit. Burchell v. Hornsby, 1 Campb. 360. Ellenboborough, C. J. 1808.

74. Though trespass will also lie. Ibid. And see Taunton v. Costar, 7 T. R. 431; Davis v. Connop, 1 Price, 53.

75. Trespass may be maintained by A. the owner of one vessel, against the owner of another, who is himself at the helm, and by whose unskilful steering, A.'s vessel is unintentionally run down. Covell v. Laming, 1 Campb. 497. Ellenborough, C. J. 1808.

Acc. Leame v. Bray, 3 East, 593. Contra Rogers v. Imbleton, 2 N. R. 117. And see Huggett v. Montgomery, 2 N.

R. 446.

But the court of K. B. discharged a 76. Though by 11 Geo. 2. cap. 19. s. rule for setting aside a verdict which had 19. a party aggrieved by an irregular been taken nominally only, for the plain-distress may recover full satisfaction for tiff in trespass, 6 T. R. 315. the special damage in an action of tresAnd see Samuel v. Payne, Dougl. 358; pass, or on the case at the election of the Morgan v. Hughes, 2 T. R. 351; Calde- plaintiff, trespass will not lie where the cott, 291; Burn's Justice, tit. Arrest. irregularity consists merely in nonfeaPost DEFAMATION, D. F. N. B. 173. sance. Messing v. Kemble, 2 Campb. (n) a. 115. Ellenborough, C. J. 1808. 68. In trespass for driving against the 77. S. P. admit: per tot. cur.; and, plaintiff, it is necessary to shew that the that trespass will lie for continuing on defendant was himself driving. Leame the premises after the five days given by

9 W. and M. st. 1 cap. 5. per Le Blanc and Bayley, J. J. Winterbourne v. Morgan, 2 Campb. 117, and 11 East, 395. K. B. T. T. 1808.

And see post AGENT, 21.; ASSUMPSIT, B.; CONDITIONS A. 1, 2; PLEADING C. (c).

And for cases of recouper, see 18 Vin. 78. Where an injury has been re- Abr. Rent. (H c) pl. 2; F. N. B. 58 H. ceived from the immediate, though un- 86. The non-compliance with a coveintentional, wrongful act of the defend-nant to sail by the first wind, cannot be set ant, the remedy is trespass, not case. up as an answer to an action for freight, Lotan v. Cross, 2 Campb. 465. Ellen- or be given in evidence in mitigation of borough, C. J. 1810.

79. And this doctrine having been settled in the case of Leame v. Bray, 3 East, 393, the court will not suffer the same point to be raised upon a motion for a new trial, grounded upon a contrary decision in C. P. S. C. in K. B. M. T. 1810. Ibid.

N. See Huggett v. Montgomery, 2 N. R. 446.

80. A count for an assault upon the plaintiff may be joined with a servitium amisit. Ditcham v. Bond, 3 Campb. 526, n; K. B. E. T. 1814.

81. A. having recovered against B., for driving holdfasts into A.'s wall, to support a nuisance, should declare in case for the continuance of the injury. Lawrence v. Obee, 1 Stark. 22. Ellenborough, C. J. 1815.

82. The putting out of a board which overhangs A.'s land, will not entitle A. to an action of trespass. Pickering v. Rudd, 4 Campb. 219. 1 Stark. 56. Ellenborough, C. J. 1815.

F. CROSS ACTION.

83. In an action against an artist for unskilfully varnishing prints, the production of the record of a judgment at his suit, against the owner for work and labour generally, is no defence. Sintzenick v. Lucas, 1 Esp. 43. Kenyon, C. J. 1793.

84. Although the former cause of action be identified with the present transaction, and it be shewn that no objection was then made on the score of the imperfection of the workmanship. Ibid.

85. But in a subsequent case, where a merchant had recovered damages against his factor, for sending an article of quality inferior to order, it was held, that the factor could not maintain a cross action for his commission; or this claim might have been urged in reduction of damages in the former action. Kist and others v. Atkinson and others, 2 Campb. 63. Ellenborough, C. J. 1809

damages. It must form the subject of a cross action. Bornman v. Tooke, 1 Campb. 377. Ellenborough, C. J. 1808.

87. So, damage occasioned by bad stowage, Sheels v. Davies, 4 Campb. 119. Ellenborough, C. J. 1814. But see Assumpsit, B.

ACTION ON THE CASE.

A. TORTS TO PERSONS. (a) Criminal conversation. (b) Harbouring wives. (c) Seducing daughters. (d) Enticing away servants. (e) Keeping mischievous animals. (f) Using dangerous instruments. (g) Malicious arrest. (h) Malicious prosecution. (i) Misfeasance in driving carriages.

B. TORTS TO PERSONAL PROPERTY.

(a) Misfeasance in steering ships.
(b) Nonfeasance.

(c) Obstruction of plaintiff's trade.
(d) Misrepresentations of solvency.
(e) Deceit in sales.
(f). Perjury.

C. TORTS TO REAL PROPERTY.

(a) Obstruction of ways. (b) Obstruction of windows. (c) Nuisance to water courses. (d) Negligence in enclosing buildings. (e) Injury to reversionary interest.

A. TORTS TO PERSONS. A. (a) Criminal conversation. (And see BARON AND FEME, A. (a) 5, 11.)

1. Qu. Whether an action for crim.