an action against Y. (t). The reason of this peculiarity appears to be that the damage to A. is the loss of the chattel; and though the conversion by X. is different from the conversion by Y., compensation by the one satisfies the claim of the plaintiff, and is therefore a defence in an action against the other. Hence, the mere judgment is no defence unless accompanied by satisfaction. When, therefore, the plaintiff has obtained a merely interlocutory judgment against the defendant, he may drop the action and proceed against the other (u); and where the damage is not estimated on the footing of the full value of the goods, this fact is, it seems, an answer to a plea of judgment recovered against one defendant in an action brought against the other (x). A more technical ground, sometimes given for the effect of judgment and satisfaction, is that "by recovery in trespass for taking, or trover for converting, personal chattels, followed by satisfaction, the property is altered, and rests in the defendant; for solutio pretii emptionis loco habetur" (y).

GENERAL

RULES.

founded

on con

Torts founded on contract (z).—As a plaintiff can be Torts compelled by a plea in abatement to sue all of several co-contractors, but may, at his option, sue any one or tract. more of several joint wrongdoers; the question arises, whether when an action is brought for a tort founded on contract, a plaintiff can or cannot be compelled to join all the persons who are parties to the contract; or, in other words, whether he can avoid a plea in abatement, by treating a breach of contract as a tort.

The answer to this inquiry is, that what must be looked to is the real nature and not the form of the action, "therefore if an action be brought against one only of

(t) Cooper v. Shepherd, 3 C. B. 266; 15 L. J. 237, C. P.

(u) Marston v. Phillips, 12 W. R. 8.

(x) Wilbraham v. Snow, 2 Wms. Saund. 47 dc, note (z).

(y) Ibid. 47 cc; Bird v. Randall, 3 Burr. 1345; Buckland v. Johnson, 15 C. B. 145; 23 L. J. 204, C. P.

(z) See pp. 16-22, ante, and pp. 370, 380, ante.

GENERAL

RULES.

Exception.

Persons sued as joint

owners of land.

several persons, upon matter founded in contract, though the form of the action be case for malfeasance or nonfeasance, and the plea not guilty [i. e., though the action be in form an action for tort], the defendant [may] plead it in abatement (a) . . . and from all the cases, and especially from Bretherton v. Wood (b), the principle appears to be this, that where the action is maintainable for the tort simply without reference to any contract made between the parties, no advantage can be taken of the omission of some defendants, or of the joinder of too many (c); as, for instance, in actions against carriers which are grounded on the custom of the realm. But where the action is not maintainable without referring to a contract between the parties, and laying a previous ground for it by showing such contract, there, although the plaintiff shapes his case in tort, yet he shall be liable to a plea in abatement if he omit any defendant, or to a nonsuit if he join too many, for he shall not, by adopting a particular form of action, alter the situation of the defendant" (d).

It is, however, as already pointed out (e), sometimes difficult to determine whether a given action is, in substance, an action ex contractu, or an action ex delicto.

Exception.-Persons sued as joint owners of land.

There is a distinction between ordinary actions for tort, and those which are brought against persons in respect of their common interest in land; for if one only of several joint tenants or tenants in common is sued for an injury arising from the state of their land, the nonjoinder of the other co-tenants may be pleaded in abate

(a) Powell v. Layton, 1 B. & P., N. R., 365; Max v. Roberts, Ibid. 454; Weall v. King, 12 East, 452; Lush, Practice, 3rd ed., 212; Bullen, Pleadings, 3rd ed., 708; Cabell v. Vaughan, 1 Wms. Saund. 291 e, 291 f.

(b) 3 B. & B. 54.

(c) Chapter XXXIV.

(d) Cabell v. Vaughan, 1 Wms. Saund. 291 f.

(e) See p. 376, ante.

ment, and this rule applies to partners as well as to GENERAL persons who are not partners (ƒ).

RULES.

RULE 99. The liability to be sued for a tort RULE 99. cannot be transferred or assigned.

Liability to be sued for

tort not

This is a mere application of the general principle (g), assignable. that the liability to be sued cannot be transferred.

Exception.-Assignment by death.

Exception.

The one real exception to this rule is, that the liability Assignment by death. to be sued for some torts is assigned by death, i. e., the personal representatives of the wrongdoer can in some cases be sued for wrongs committed by him (h).

An apparent rather than a real exception arises in the case of marriage. A woman remains after as before marriage liable for the torts committed by her, but since she cannot during coverture be sued alone, her husband must be joined as defendant in actions for wrongs done by her (i).

doer's

RULE 100. Each wrongdoer's separate liability to RULE 100. be sued for a tort passes on his death (if it survives Wrong at all) to his personal representatives. The joint separate liability of several wrongdoers passes on the death passes of each to the survivors.

X., Y., and Z., commit a joint tort against A., e. g., convert his goods. X. and Y., and Z., are each liable to be sued separately. This separate liability passes on the

(f) See 1 Lindley, Partnership, 2nd ed., 489; 1 Wins. Saund. 291 f&g; Mitchell v. Tarbutt, 5 T. R. 649.

(g) Rule 9.

(h) Chapter XXXII.

(i) Rule 107. The liability for torts is in no case transferred by bankruptcy.

liability

to his

representatives.

GENERAL

RULES.

death of Z. (supposing it to survive him at all (k)) to M. his representative.

X., Y., and Z., are further liable to be sued jointly. This joint liability survives on the death of Z. against X. and Y., but it does not pass to M., Z.'s representative. In other words, after Z.'s death, A. may sue either X. or Y., or X. and Y., or M.; but he can in no case sue X. and Y., and M.

Joint wrongdoers are, in fact, in the same position as persons who have broken both a joint and several contract. The common liability on the joint contract passes on the death of one contractor to the surviving contractors. The separate liability of each on his separate contract passes on the death of each to his representatives.

(k) Chapter XXXII.

CHAPTER XXVI.

PRINCIPAL AND AGENT.

PRINCIPAL

AND

AGENT.

RULE 101.

RULE 101.-A principal is liable to be sued for the torts of an agent either committed by the command of the principal, or subsequently assented to liable for or ratified by him.

If A., by the command of P., commits a tort against T., e.g., converts his goods (a), P. is liable to be sued as well as A. P. is liable, strictly speaking, not as principal or master, but as a joint wrongdoer (b).

P. can, therefore, be sued directly for the tort, and if the wrong itself is one for which trespass lies, e.g., an assault, or an arrest, can be sued as a trespasser. His liability does not depend upon the existence of the relation of master and servant (c), and therefore may arise where this relation does not exist. P. was driving in a hired carriage, and ordered the postilion to drive in a reckless manner. He was held responsible for an injury caused by such driving, though the owner of the carriage was the postilion's master, and would be, as a general rule, the person liable for torts committed by him while driving (d)." The cases in which it has been decided that an action will not lie against the hirer of a carriage and

(a) Throughout this chapter P. stands for the principal, or employer; A. the agent, or servant, employed; T., the third party, injured. See p. 130, note (a), ante.

(b) Story, Agency, s. 455; Smith, Master and Servant, 2nd ed., 207; see p. 430, ante.

(c) McLaughlin v. Pryor, 4 M. & G. 48.

(d) See Rule 102.

Principal

torts committed by his com

mand.