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doers in a single action, or may sue any one, or may sue each in a separate action, or may sue any number he pleases less than all; the fullest liberty is given him in this respect. The only exceptions are those few instances in which the tort from its very nature must be a separate act impossible to be committed by two or more jointly.2 A sheriff and his deputy may be sued jointly for the trespasses and other wrongful acts done by the

1 [But where a joint issue is presented on the pleadings against a number of tort-feasors, plaintiff has no right to any other than a joint recovery, unless the action has failed as to all but one of the defendants, or unless the joint issue has been modified by a severance in the answers: Ashkraft v. Knoblock (1896), 146 Ind. 169, 45 N. E. 69. But see Hassler v. Hefele (1898), 151 Ind. 391, 50 N. E. 361, where the court says, quoting from an earlier case: "It was held in terms that this provision of the code (Burns' R. S., § 579) applies to all actions indiscriminately, whether founded upon contract or upon tort; that it is immaterial whether the complaint alleges a joint or a joint and several liability; that the right of recovery is, in this respect, to be regulated by the proof and not by the allegations of the complaint; that, in other words, every complaint is, in the respect stated, to be treated as both joint and several where there are two or more defendants."]

2 Creed v. Hartman, 29 N. Y. 591, 592, 597; Roberts v. Johnson, 58 N. Y. 613, 616, an action against one partner only where the entire firm had been guilty of negligence; Chester v. Dickerson, 52 Barb. 349, 358; Phelps v. Wait, 30 N. Y. 78, an action against principal and agent for negligence of the agent; Kasson v. People, 44 Barb. 347; Wood v. Luscomb, 23 Wis. 287, an action against one part ner for negligence by the firm; Fay v. Davidson, 13 Minn. 523; Mandlebaum v. Russell, 4 Nev. 551; McReady v. Rogers, 1 Neb. 124; Murphy v. Wilson, 44 Mo. 313; Allred v. Bray, 41 Mo. 484; Brady v. Ball, 14 Ind. 317, action for injury done by trespassing animals which belonged to several persons jointly; Turner v. Hitchcock, 20 Iowa, 310, a very elaborate and instructive judgment; Buckles v. Lambert, 4 Metc. (Ky.) 330; Hubbell v. Meigs,

50 N. Y. 480, 489; McIntosh v. Ensign, 28 N. Y. 169; Bullis v. Montgomery, 50 N. Y. 352. Where a right of action for tort exists against several, and is of such a character that it survives upon the death of the wrong-doer, if one of the persons liable dies, the action may be brought or continued against his personal representatives; but it is the settled rule in New York that the action in such case must be divided, and one suit be brought or continued against the survivors, and one against the representatives of the deceased. Bond v. Smith, 6 N. Y. Sup. Ct. 239; 4 Hun, 48; Heinmuller v. Gray, 13 Abb. Pr. N.S. 299; Union Bank v. Mott, 27 N. Y. 633; Gardner v. Walker, 22 How. Pr. 405; McVean v. Scott, 46 Barb. 379. As further illustrations; - negligence: Vary v. B. C. R. & M. R. Co., 42 Iowa, 246 (joint employers); Van Wagenen v. Kemp, 7 Hun, 328, a joint action allowed against the owner of a lot for a negligent excavation of the sidewalk, and the city for negligently suffering the same; cf. infra, § 308 note; Mitchell v. Allen, 25 id. 543 (a release of one of the persons jointly negligent releases all); Gudger v. Western N. C. R. Co., 21 Fed. R. 81; trespass: Wehle v. Butler, 61 N. Y. 245; Fleming v. McDonald, 50 Ind. 278; fraud: Bond v. Smith, 4 Hun, 48 (one of the defendants dies); Hun v. Cary, 82 N. Y. 65 (trustees guilty of a tortious breach of trust, a portion of them may be sued all need not be joined); nuisance: Cobb v. Smith, 38 Wis. 21, a mill-dam caused plaintiff's lands to be overflowed; held, the persons who had acquired title to the land on which the dam stands, and by whose authority it has been maintained, are proper co-defendants; Greene v. Nunnemacher, 36 Wis. 50; Lohmiller v. Indian Water Co., 51 id. 683; Hillman v. Newington, 57 Cal. 56.

latter in his official capacity; the deputy, because he actually commits the tort, and the sheriff because he is the principal. A passenger in the cars of one company was injured by a collision with a train of another company which used the same track. The servants of both companies were in fault, and as the wrong was caused by the negligence of each corporation, an action brought against them jointly was sustained.2

1 Waterbury v. Westervelt, 9 N. Y. 598; King v. Orser, 4 Duer, 431; contra, Moulton v. Norton, 5 Barb. 286, 296, per Pratt J. This dictum is clearly erroneous. So, too, an execution or an attachment creditor, under whose direction property is tortiously taken by the sheriff, is properly joined with the sheriff in an action for the trespass: Elder v. Frevert, 18 Nev. 446; Marsh v. Backus, 16 Barb. 483.

2 Colegrove v. N. Y. & N. H. R. Co., 20 N. Y. 492; Mooney v. Hudson River R. Co., 5 Robt. 548.

[A railroad company and its receiver may be joined in an action for tort to recover damages caused by flooding plaintiff's land: St. Louis, etc. R. R. Co. v. Trigg (1897), 63 Ark. 536, 40 S. W. 579. An engineer and fireman through whose negligence plaintiff's intestate was killed, may be sued jointly with the master, the railroad corporation: Winston's Adm'r v. Ill. Cent. R. R. Co. (1901), Ky., 65 S. W. 13. A master and servant, generally, may be jointly sued for the servant's negligence: Central of Georgia Ry. Co. v. Brown (1901), 113 Ga. 414, 38 S E. 989; Greenberg v. Whitcomb Lumber Co. (1895), 90 Wis. 225, 63 N. W. 93. A fireman injured in a collision properly joined as defendants the railroad company, the division superintendent, and the train despatcher Howe v. Northern Pac. Ry. Co. (1902), 30 Wash. 569, 70 Pac. 1100.

Where a tort is committed by the separate but concurrent negligence of a town marshal and a board of town trustees, suit may be brought against them jointly, together with the bondsmen on the marshal's bond: Doeg v. Cook (1899), 126 Cal. 213, 58 Pac. 707. All who participate in a fraud are jointly liable therefor: Spaulding v. North Milwaukee Town Site Co. (1900), 106 Wis. 481, 81 N. W. 1064;

Austin v. Murdock (1900), 127 N. C. 454, 37 S. E. 478; - including those whose gains or losses are attributable to the fraud: Stevens v. South Ogden Land Co. (1896), 14 Utah, 232, 47 Pac. 81.

It was held in Page v. Citizens Banking Co. (1900), 111 Ga. 73, 36 S. E. 418, that an action for malicious prosecution may be brought jointly against a partnership, the individual members thereof, and a person not a member, if such prosecution was begun and carried on as a result of a conspiracy among them.

The plaintiff may sue any one or more of joint tort-feasors as he may elect : Coddington v. Canaday (1901), 157 Ind. 243, 61 N. E. 567; Pugh v. Chesapeake & Ohio Ry. Co. (1897), 101 Ky. 77, 39 S. W. 695; Douglass v. Railway Co. (1894), 91 Ia. 94, 58 N. W. 1070; Brown v. City of Webster City (1902), 115 Ia. 511, 88 N. W. 1070; Cumberland Tel. Co. v. Ware's Adm'r (1903), Ky., 74 S. W. 289; Chapin v. Babcock (1896), 67 Conn. 255, 34 Atl. 1039.

One joint wrong-doer cannot complain that others equally guilty are not joined with him: Berkson v. Kansas City Ry. Co. (1898), 144 Mo. 211, 45 S. W. 1119; Whitman McNamara Tobacco Co. v. Wurm (1902), Ky., 66 S. W. 609; Scott v. Flowers (1900), 60 Neb. 675, 84 N. W. 81.

The plaintiff may dismiss as to some at any stage of the proceedings, without affecting the merits as to the others: Berkson v. Kansas City Ry. Co. (1898), 144 Mo. 211, 45 S. W. 1119; Melson v. Thornton (1901), 113 Ga. 99, 38 S. E. 342.

It is held in Connecticut, Nichols v. Peck (1898), 70 Conn. 439, 39 Atl. 803, that the persons jointly guilty of a trespass quare clausum fregit should be sued jointly, and if several actions are instituted without due cause such actions should be consolidated.]

§ 209.308. Joint Liability must rest upon Community in Wrongdoing. In order, however, that the general rule thus stated should apply, and a union of wrong-doers in one action should be possible, there must be some community in the wrong-doing among the parties who are to be united as co-defendants; the injury must in some sense be their joint work. It is not enough that the injured party has on certain grounds a cause of action against one, for the physical tort done to himself or his property, and has, on entirely different grounds, a cause of action against another for the same physical tort; there must be something more than the existence of two separate causes of action for the same act or default, to enable him to join the two parties liable in the single action. This principle is of universal application.2

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1 [But in the case of a joint assault, malice on the part of one will be attributed to all, and each will be held liable for all the damages, both actual and exemplary: Reizenstein v. Clark (1897), 104 Ia. 287, 73 N. W. 588. So a master and servant are both liable for the servant's wilful tort, if within the scope of his employment: Gardner v. Southern Ry. Co. (1903), 65 S. C. 341, 43 S. E. 816.

Trowbridge v. Forepaugh, 14 Minn. 133. F., owning a lot in St. Paul abutting on a street, dug and left open a dan gerous hole in the street, into which the plaintiff fell. He sues the city and F. jointly, basing his claim upon the above acts of F., and upon the general duty of the city in respect of its streets. The court held that such a joint action could not be maintained. "The liability of the city depends on a state of facts not affect ing its co-defendant, and the converse is equally true. Neither is, in fact nor in law, chargeable with, nor liable for, the matter set up as a cause of action against the other. They did not jointly conduce to the injury." Contra, in Van Wagenen v. Kemp, 7 Hun, 328, a similar case, the joinder was allowed. See also Long v. Swindell, 77 N. C. 176; Cogswell v. Murphy, 46 Iowa, 44; Keyes v. Little York Gold, etc. Co., 53 Cal. 724; Mitchell v. Allen, 25 Hun, 543 (a release of one of several joint tort-feasors releases all; Cooper v. Blair, 14 Oreg. 255; Dahms v. Sears, 13 Oreg. 47; [M. K. & T. Ry. Co. v. Haber (1896), 56 Kan. 694, 44 Pac. 632.]

[Where parents wrongfully cause husband and wife to separate, they are jointly liable, though each does not participate in all the acts of the other: Price Price (1894), 91 Ia. 693, 60 N. W. 202. And in an action by a wife for damages resulting from a particular intoxication of her husband, all the parties who contributed to the particular intoxication may be joined, although they were conducting separate places of business when the liquor was sold to the husband and did not act in concert: Faivre v. Mandirschied (1902), 117 Ia. 724, 90 N. W. 76.

It was held in City of Kansas City v. File (1899), 60 Kan. 157, 55 Pac. 877, that a city and an electric light company are jointly liable for injuries sustained by plaintiff by reason of a broken wire which remained in the street for three weeks, constituting a dangerous obstruction to travel. A dissenting opinion was rendered citing the text, and the case of Trowbridge v. Forepaugh (infra). See, also, Street Ry. Co. v. Stone (1894), 54 Kan. 83, 37 Pac. 1012, where a city and a street railway were held jointly liable for a dangerously constructed track.

In Smith v. Day (1901), 39 Ore. 531, 65 Pac. 1055, the court said: "Two or more tort-feasors may be sued jointly when they have all concurred by joint design or common act or negligence to produce the injury complained of; but where the parties have acted separately and independently of each other, without concert, or by common purpose, although

§ 210.309. Case of Joint Conversion of Chattels. The general doctrine under examination embraces as well the case of a joint conversion of chattels, as any other instance of joint tort to property or person. When two or more have united in the act which amounts to a conversion, or have so interfered with the chattel as to constitute a conversion within the legal meaning of the term, the owner or person having the special property may sue all, or one, or any, as in the case of any other tort. But there must be a community in the wrong-doing; the wrongful act must constitute a conversion on the part of all, and in that act all must have engaged. When such is the case, the law does not apportion the responsibility, but holds each liable for the whole amount. If there is no such community, a joint action for the conversion will not lie, and a fortiori, it will not lie when the defendants have not each been guilty of an act which is a wrongful conversion,

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§ 211. *310. Case of Replevin and Detinue. The same general doctrine, under the same limitations, controls the action of replevin, or detinue, -or to recover possession of chattels, which at the common law was regarded as a personal action based upon the tortious act of the defendant, in his wrongful detention or taking of the goods. If, therefore, there is a joint wrongful taking or detention of the goods, the action will lie against the wrong-doers jointly, although one of them may have parted with his actual possession. Thus, where goods had been sold and delivered to a fraudulent vendee, so that the vendor might rescind and retake the chattels, and this vendee had afterwards assigned them to an assignee in trust for creditors, and the

the injury may be a common result to which the acts of each contributed, their liability is not joint, and a joint recovery cannot be had."

Stuart v. Bank of Staplehurst (1899), 57 Neb. 569, 78 N. W. 298: " The petition charged joint actions of the defendants, and the acts were such as might be done in combination; hence it was not open to attack by demurrer for an improper joinder of parties."

Miller v. Beck (1899), 108 Ia. 575, 79 N. W. 344: Where two creditors with separate claims put them in the hands of the same attorney, and attachments were sued out on each, this does not make

them joint tort-feasors and jointly liable for the wrongful attachments.]

1 See Simmons v. Spencer, 9 Fed. R. 581; 3 McCrary, 48.

2 [Ess v Griffith (1894), 128 Mo. 50, 30 S. W. 343: The purchaser, with knowl edge of the conversion, is jointly liable with the wrongful seller. . . . It does not matter that the parties acted in good faith and believed they had a right to take and dispose of the property."]

3 Manning v. Monaghan, 23 N. Y. 539. See s. c. 28 N. Y. 585. Further instances of joint conversion: Hearty v. Klinkhammer, 39 Minn. 488. All the wrongdoers need not be joined: Carroll v. Fethers, 82 Wis. 67.

possession had actually been transferred to such trustee, an action by the vendor to recover the possession of the goods was held to be properly brought against both jointly, the assignee not being a purchaser for value.1

§ 212. * 311. Common Carriers. The common-law doctrines relating to suits against common carriers are unaltered. Although an action may be brought upon their contract express or implied to carry the goods safely, yet the ultimate ground of their liability is their general duty, the violation of which is a tort. The usual form of the action under the old system was Case, and not Assumpsit. The owner of goods that have been lost or damaged in the carriage may therefore treat the default as a tort, and sue all or any of the parties at his election.2

§ 213. *312. Lessor and Lessee. Principal and Agent. A joint liability for an injury may arise from the ownership and occupancy of real property.3 As an example, where the owner of a house had constructed a coal-hole in the sidewalk in such a manner and position as to be dangerous to passers, and had leased the premises to a tenant who used the coal-hole, and a person passing on the sidewalk had fallen into it and been injured, both the owner and the tenant were held liable, and a joint action against them was sustained. In general, the principal and his agent may be sued

1 Nichols v. Michaels, 23 N. Y. 264. See, especially, the opinions of James J., p. 268 et seq., and of Selden J., pp. 270, 271, where the nature of the action before and since the code is discussed at length. See also ante, §*297.

2 McIntosh v. Ensign, 28 N. Y. 169. 8 [Where the sole ground of liability for a negligent injury is the ownership of certain land, the persons who are joint owners should be joined: Printup v. Patton (1893), 91 Ga. 422, 18 S. E. 311. But in an action by mandamus against a lessee of a railroad to compel the restoration of a highway, the lessor is not a necessary party: People ex rel. v. Railway Co. (1900), 164 N. Y. 289, 58 N. E. 138.]

4 Irvin v. Wood, 4 Robt. 138, 5 Robt. 482; s. c. on appeal, 51 N. Y. 224, 230; 10 Am. Rep. 603. But see Trowbridge v. Forepaugh, 14 Minn. 133, supra, §* 308 (n); and compare Van Wagener v. Kemp, 7 Hun, 328, there cited. Farther

illustrations: nuisance: Cobb v. Smith, 38 Wis. 21; supra, § * 307 (n.); Greene v. Nunnemacher, 36 Wis. 50; Lohmiller v. Indian Water Co., 51 id. 683.

[Waterhouse v. Schlitz Brewing Co. (1900), 12 S. D. 397, 81 N. W. 725: A tenant is not a necessary party in an action against the owner of a building for injuries caused by its collapse, where the complaint alleges that the collapse occurred because of negligent construction, but did not allege decay or want of repairs.

It was held in Atcheson, Topeka, etc. Ry. Co. v. Anderson (1902), 65 Kan. 202, 69 Pac. 158, that the lessee could not be sued without the lessor. The court said, in the syllabus: "In an action against a railroad company for damages in laying a track in a public street and obstructing the ingress and egress of a lot owner to and from his property, it appeared that the company sued was not the owner of the track when it was built, nor at the time the action was commenced,

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