personal redress. It follows, therefore, that when a tort of a personal nature, an assault and battery, a false imprisonment, a libel, a slander, a malicious prosecution, or the like, is committed upon two or more, the right of action must, except in a very few special cases, be several. In order that a joint action may be possible, there must be some prior bond of legal union between the persons injured-such as a partnership relation of such a nature that the tort interferes with it, and by virtue of that very interference produces a wrong and consequent damage common to all. It is not every prior existing legal relation between the parties that will impress a joint character upon the injury and damage. Thus, if a husband and wife be libelled or slandered, or beaten, although there is a close legal relation between the parties, it is not one which can be affected by such a wrong, and no joint cause of action will arise. The doctrine above stated has been fully recognized and asserted by the courts since the codes were enacted.2 A fire company-a voluntary association - having been libelled, a joint action by its members to recover damages against the libeller was held improper; not being partners, and not having any community of legal interest whereby they could suffer a common wrong, the right of action was several, and each must sue alone. The same rule has been applied in the case of two or more persons, not partners, suing jointly to recover damages for a malicious prosecution; the action cannot be maintained.4

§ 149. * 232. VII. Actions in Special Cases. Some special cases which do not fall within the foregoing classification will conclude this branch of the discussion. A policy of fire insur

1 [See, however, Shull v. Barton (1899), 58 Neb. 741, 79 N. W. 732, where the court said: "This court is committed to the doctrine that two parties having separate and distinct claims to the possession of the same property may join in an action of replevin therefor."]

2 Shull v. Barton (1898), 56 Neb. 718, 77 N. W. 132: "Two creditors who lost their several claims and attachment liens, because a coroner negligently approved a worthless replevin bond in a suit in which the attached property was taken from the sheriff, cannot join as plaintiffs in an action for damages against the coroner for approving such bond." Two persons can

not join in a suit against a telegraph company for mental anguish; each has a separate cause of action, if any: Morton v. Western Union Tel Co. (1902), 130 N. C. 299, 41 S. E. 484.

8 Giraude. Beach, 3 E. D. Smith, 337; Hinkle v. Davenport, 38 Iowa, 355, 358; Stepank v. Kula, 36 id. 563.

4 Rhoads C. Booth, 14 Iowa, 575. See Swales v. Grubbs (Ind. App. 1893), 33 N. E. 1124, and see also, on the general subject of this paragraph, Hellams r. Switzer, 24 S. C. 39.

[A proceeding in maudamus is properly brought in the name of the State, even though the application is made in

ance, containing the clause, "loss, if any, payable to E. B. G., mortgagee," the assured, it was held, could not maintain an action without making E. B. G. a co-plaintiff, unless it was alleged and proved that the mortgage to him had been paid off so that his interest had ended.1 In several of the States, by virtue of special provisions contained in their codes, partnerships may sue and be sued by the use of the firm name as the parties plaintiff or defendant, in the same manner as though they were corporations. The judgments recovered in such actions against the partnership can only be enforced, in the first instance, against the firm property, and can only be extended so as to bind the individual property of the several partners by a subsequent direct proceeding against them, or some of them, in the nature of a scire facias.2 The Kentucky code contains a peculiar provision in

the interest of a private person: State v. Pac. Brewing Co. (1899), 21 Wash. 451, 58 Pac. 584.

In a suit for a penalty the person suing and not the State is the proper party plaintiff, unless the statute otherwise directs Burrell v. Hughes (1895), 116 N. C. 430, 21 S. E. 971. In such a suit several may sue jointly for their joint use: Carter v. Wilmington, etc. R. R. Co. (1900), 126 N. C. 437, 36 S. E. 14.

State ex rel. v. Bradley (1901), 10 N. D. 157, 86 N. W. 354: Under § 7605, Rev. Codes, a citizen of a county in which a liquor nuisance exists may maintain an action in the name of the State without authority from the State's attorney or the attorney general.

Persons whose interests are separate and independent cannot be joined as relators in mandamus: State ex rel. v. Fraker (1901), 166 Mo. 130, 65 S. W. 720. But where a board of election commissioners refuses to place the names of a number of nominees for the office of appellate judge upon the official ballot, such nominees have sufficient common interest in obtaining a unit of mandate against the board, to unite in an action therefor: State ex rel. v. Mount (1898), 151 Ind. 679, 51 N. E. 417.]

1 Ennis v. Harmony F. Ins. Co., 3 Bosw. 516. [Where an insurance policy is payable absolutely to a mortgagee, the mortgagee is a necessary party plaintiff, though the assured may properly be made

a party also to protect his interest in the policy: Burlington Ins. Co. v. Lowery (1895), 61 Ark. 108, 32 S. W. 383. See also § *226, infra, and notes.] And see Hammell v. Queen Ins. Co., 50 Wis. 240; Winne. Niagara F. Ins. Co., 91 N. Y. 185; Connecticut F. Ins. Co. v. Erie Ry. Co., 73 N. Y. 399. Where insured property is destroyed by fire, caused by the wrongful act or negligence of a third party, if the value of the property exceeds the amount of insurance paid, the insurer paying the loss acquires thereby to the extent of the payment a joint interest with the owner in the cause of action against the wrongdoer, hence, in prosecuting such cause of action the insurer must join the owner as co-plaintiff. Home Mut. Ius. Co. v. Oregon Ry. & Nav. Co., 20 Oreg. 569. That such joinder is, at any rate, permissible, see Crandall v. Goodrich Transp. Co., 16 Fed. Rep. 75. But where the insurance company has paid the insured the full value of the property destroyed, it may maintain the action in its own name. Marine Ins. Co. v. St. Louis, etc. Ry. Co., 41 Fed. Rep. 643; Home Mut. Ins. Co. v. Oregon Ry. & Nav. Co., 20 Oreg. 569.

2 See supra, §*121. Ryerson v. Hendrie, 22 Iowa, 480. See Wills v. Simmonds, 8 Hun, 189, 200 (legal action by one of several partners against another one without joining the remaining copartners).

reference to actions brought by an assignee of a thing in action where the assignment is equitable, merely, that is, where it is not expressly authorized by statute; in such a case the assignor must be joined as a party either plaintiff or defendant, at the option of the assignee who brings the suit. The code of the same State expressly authorizes the owner of land to maintain approriate actions to recover damages for any trespasses or other injuries committed thereon, although he may not be in the actual possession, or have the right to the immediate possession, at the time when the trespass or other injury complained of was committed. This is undoubtedly the true interpretation of the codes of all the States without any express provision to that effect. The common-law distinction between "trespass and "case" being abolished, the owner is entitled to maintain an action and recover damages, by alleging the actual facts which constitute the cause of action, although under the former procedure he would, under certain circumstances, sue in "trespass," and under other circumstances in case. The nature of the right of action has not been changed, nor has the amount of damages recoverable been affected, but the special and technical rules which governed the use of the two common-law actions mentioned have certainly been abrogated. A legatee or dis

2 Bebee . Hutchinson, 17 B. Mon. 496.

8 Brown v. Bridges, 31 Iowa, 138, 145. A plaintiff suing, as owner of land, for injuries done by a wrongdoer, cannot, consistently with the plain import of the codes, be nonsuited, because he was out of possession, and not entitled to possession. Undoubtedly, he may not be able to recover such damages as he would have recovered if the action was the common-law trespass," - that is, damages for the wrong done to his possession as well as to the inheritance; but he is cer

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tainly entitled to recover such damages as he would have obtained if the action was the common-law "case," - that is, damages for the injury to the inheritance. To nonsuit the plaintiff is to restore the old distinctions between these technical actions. This doctrine is expressly sustained by the Supreme Court of Missouri: Fitch v. Gosser, 54 Mo. 267; and by a very recent decision in New York: Adams v. Farr, 5 N. Y. Sup. Ct., 59, citing Robinson v. Wheeler, 25 N. Y. 252. S. P. Foster v. Elliott, 33 Iowa, 216, 224; Rogers v. Duhart (Cal. 1893), 32 Pac. 570 (an allegation, not sustained by the evidence, that the plaintiff was in possession may be treated as surplusage). But see Townsend v. Bissell, 5 N. Y. Sup. Ct. 583, per Gilbert J., a contrary dictum, which, in the face of these authorities, and of the code itself, is clearly a mistake. The character of the possession required to maintain trespass" is illustrated in Alexander r. Hurd, 64 N. Y. 228. The plaintiff's wife

tributee of an estate in the hands of an executor or administrator may, under certain circumstances, maintain an action to recover a debt or demand due to the deceased, if for any reason the personal representative is legally disabled from suing. Thus, for example, where B. in his lifetime was indebted to A., both die, and the same person is made administrator or executor of each estate, a legatee or distributee of A.'s estate may bring an action in his own name against the one who is thus the administrator of B.'s estate, as well as executor or administrator of A.'s estate. This person, as the representative of one estate, cannot sue himself as representative of the other, and therefore the beneficiaries of the creditor estate are permitted to prosecute the action. It seems, also, that such action can be brought either by one of the legatees or distributees, or by all of them jointly.1

§ 150. * 233. Actions by Parents or Guardians for the Seduction of, or Injury to, their Children or Wards. It is held in New York

owned the farm; the plaintiff built the house on it, in which he and his family had lived for years, and were still living; he worked the farm, owned the stock and tools, and provided for his family. It was held that he had such a possession of the farm that he could maintain an action for trespass upon it in breaking into and injuring it.

56 Mo. 325. In Kentucky it has been expressly decided that several distributees cannot unite in a legal action against the administrator to recover the shares found due to each upon a settlement of the estate. Pelly v. Bowyer, 7 Bush, 513. For various actions by administrators, executors, legatees, and heirs, see Smith v. Van Ostrand, 64 N. Y. 278; Tyson v. Blake, 22 N. Y. 558; Dunning c. Ocean Nat. Bank, 61 id. 497; Cashman v. Wood, 6 Hun, 520; Pendleton v. Dalton, 77 N. C. 67; Filbey v. Carrier, 45 Wis. 469; Catlin v. Wheeler, 49 id. 507; Harris v. Harris, 61 Ind. 117; Taylor v. Fickas, 64 id. 167; McDowell v. Hendrix, 67 id. 513; Colton v. Onderdonk, 69 Cal. 155 (a sole devisee in possession of the estate may sue for trespass); Segelken v. Meyer, 94 N. Y. 473 (special circumstances under which plaintiff may recover personal property of a deceased person as next of kin, without the intervention of an administrator); Grubb v. Lookabill, 100 N. C. 267 (in an action by an administrator against his decedent's vendee to recover the purchase-money due on a bond for title by selling the land, the vendor's heirs-at-law are necessary parties). As to co-plaintiffs in action for contribution, see Hughes

1 Fisher v. Hubbell, 65 Barb. 74; s. c. 1 N. Y. Sup. Ct. 97. It was also held that Hubbell the common trustee should be made a defendant, both as adminis trator of A.'s estate, and as executor of B.'s estate; of the latter, because he thus represented the debtor: and of the former, because he was the regular plaintiff, and should be made a party in order to conclude the estate by the judgment. It was said that, in order to bind the estate of a deceased person, his administrator or executor must be made a party in his representative capacity; it is not sufficient that he be made a party. See Haynes v. Harris, 33 Iowa, 516. In Missouri, the distributees of an estate in the hands of an administrator may, before an order for distribution is made, all unite in a joint action on the administrator's bond against him and his sureties. Whether such joint action would be proper after the order for v. Boone, 81 N. C. 204. a distribution, quære. Kelley v. Thornton,

that a mother may maintain an action for the seduction of her infant daughter where the father is dead, and the daughter is dependent upon the mother, although the latter has remarried.1 This rule has also been extended to the case where the father is not dead, but has abandoned his wife, who lives separate and apart from him, and maintains herself and family by carrying on a business in which the daughter is actually employed as an assistant, rendering substantial services. The action being founded upon the relation of master and servant, and not upon that of parent and child, and the mother carrying on a business in which the daughter is employed as a servant, all the requisites of the general doctrine relating to the action of seduction are fully complied with. These decisions are based upon commonlaw principles independently of any changes made by statute.3 The codes of several States, however, contain special provisions authorizing actions to be brought by fathers, or, in case of their death or desertion of their families, by mothers, and by guardians, to recover damages for the seduction of, or for the death of, or injuries to, their children or wards. A woman is per

1 Lampman v. Hammond, 3 N. Y. Sup. Ct. 293: Gray v. Durland, 50 Barb. 100, 51 N. Y. 424; Furman v. Van Sise, 56 N. Y. 435; Badgley v. Decker, 44 Barb.

577.

2 Badgley v. Decker, 44 Barb. 577. See Certwell v Hoyt, 6 Hun, 575 (by a grandfather). Actions to recover earnings of an infant child; see Hollingsworth v. Swedenborg, 49 Ind. 378; Monaghan v. Randall Sch. Dist., 38 Wis. 100; Matthews v. Mo. Pac. Ry. Co., 26 Mo. App. 75 (action by widow to recover for loss of services of her minor child, sustained, independently of statute). [Senn v. Southern Ry. Co. (1894), 124 Mo. 621, 28 S. W. 66: Where the mother dies pending an action brought by both parents for the death of an unmarried minor son, the father may continue the action in his own name. Keller v. City of St Louis (1899), 152 Mo. 596, 54 S. W. 438: Where a wife secures a divorce from her husband, and the "care and custody" of the child is awarded to the wife, but no order is made respecting the "maintenance" of the child, the duty of supporting the child still devolves upon the husband, and the wife cannot, during the husband's

life, maintain an action alone for damages due to injuries to the minor child. Pierce v. Conners (1894), 20 Colo. 178, 37 Pac. 721 By statute the father and mother have an equal interest in the judgment recovered for wrongfully causing the death of a minor child. But suit may be brought either by the father alone or by both together. Buechner v. Columbia Shoe Co. (1895), 60 Minn. 477, 62 N. W. 817: Under G. S. 1894, § 5164, a father may maintain an action in his own name to recover damages for an injury to his minor child. Same holding in Lathrop v. Schutte (1895), 61 Minn. 196, 63 N. W. 493.]

3 [But see Anthony v. Norton (1899), 60 Kan. 341, 56 Pac. 529 and Snider v. Newell (1903), 132 N. C. 614, 44 S. E. 354, where it was held that, under the general code provisions, without any special statute, a parent might recover for the seduction of a daughter without showing any loss of services.]

See supra, § are enumerated.

120, where the States A statute which dis

penses "with any allegation or proof of loss of service" does not change the rules of the law as to the parties; the seduced