costs of the first action are paid,' and this, although the second action is in a different court from that in which the first action was brought.2

1 Hoare v. Dickson, 7 C. B. 164; 15 Law Jour. N. S. 158, C. P.

* Prowse v. Loxdale, 3 B. & S. 896. After judgment for defendant and writ of error by plaintiff, the defendant was discharged as a bankrupt; on motion plaintiff was allowed to discontinue without costs. (Labrow v. Woram, 5 Hill, 373, citing Hart v. Storey, I Johns. 143; Case v. Belknap, 5 Cow. 422; Honeywell v. Burns, 8 Id. 121.)

CHAPTER XII.

PARTIES.

Question as to parties anticipated-Action by alienOutlaw-Rebel-Executors or administrators-Married woman-Husband and wife-Partners-General rule as to joinder—Action against husband and wife-Contribution.

$297. The questions who may sue and who may be sued, of course generally depend upon the prior questions of rights and liabilities, and therefore, to some extent, the question of parties has been anticipated.' Subject to any exceptions which have been or may be mentioned, the rules as to parties which prevail in actions for torts generally apply to the actions for slander and libel.'

§ 298. It was held that an alien friend, although residing in a foreign country, might maintain an action for a libel published in England. Where the plaintiff in an action for libel was at the commencement of the action an outlaw, of which the defendant was ignorant until after notice of trial, the court after the trial stayed the proceedings, but removed the stay on the outlawry being

1 Ante, $$ 115, 119, notes; and see post, note I, p. 550.

In New York, actions (with a few exceptions) must be in the name of the real party in interest, therefore an answer that plaintiff is not the real party in interest, but the action is prosecuted by some one else in plaintiff's name, was held to be relevant. (Moody v. Libbey, 1 Abb. N. C. 154.)

3 Pisani v. Lawson, 6 Bing. N. C. 90; 8 Dowl. 57; 8 Scott, 182; see Burnside v. Matthews, 54 N. Y. 78.

reversed. In an unreported case in New York (Cummings v. Bennett), it being shown that the plaintiff in an action for libel was an unpardoned rebel, the court at special term made an order dismissing the complaint, but the general term reversed the order. In an action for words imputing murder, the court allowed the defendant until the next term to plead, upon the ground that the plaintiff was to be tried for the alleged murder on an indictment then pending."

§ 299. By the common law, actions of tort die with the person, and this rule applies to actions for slander 3 and libel, except in those States where a different rule is prescribed by statute. In New York, certain actions of tort, except slander and libel, survive. But the death of a plaintiff after a judgment in his favor, and pending an appeal from the judgment, does not abate the appeal, and the personal representatives of the deceased may be sub

1 Somers v. Holt, 3 Dowl. Pr. Cas. 506; see Reg. v. Lowe, 8 Ex. 697. In an action for slander of an infant, the father having been admitted to sue as prochein amy, and afterwards it appearing that he had taken the benefit of the insolvent debtor's act, and had since had no occupation, the court, in the absence of anything to satisfy them that no fitter person could be obtained, vacated the appointment, with leave to move to reappoint the father, or substitute some other person. (Duckett v. Satchwell, I Dowl. & L. 980; 13 Law J. N. S. Exch. 224; 8 Jur. 408.) Sibson v. Nivin, Barnes Notes, 224.

31 Wm. Saund. 316 a, 6th ed.; Nettleton v. Dinehart, 5 Cush. 543; Walters v. Nettleton, 5 Cush. 544; Walford on Parties, 1392, 1449. At common law, where there is judgment against the defendant, and he appeals, and after the appeal the . defendant dies, the judgment dies with him. (Faith v. Carpenter, 33 Ga. 79.)

42 Rev. Stat. of N. Y. 447, S$ 1, 2. By statutes in Ohio and Maryland, the right of action for slander or libel does not abate by death of plaintiff. (Alpin v. Morton, 21 Ohio, N. S. 536.) Contra, in Massachusetts. (Cummings v. Bird, 115 Mass. 346.) And semble, Arkansas. In Ireland v. Champneys, 4 Taunt. 884, an action for libel, after interlocutory judgment and writ of inquiry executed, the plaintiff died; held that final judgment could not be entered, the suit having abated by the plaintiff's death. (See Kramer v. Waymark, Law Rep. 1 Exch. 243.) After a judgment for defendant in an action for libel, and a reversal of that judgment in the Court of Appeals, and new trial ordered, the defendant died; held that plaintiff could not revive the action against defendant's representatives. (Moore v. Bennett, 65 Barb. 338.)

stituted as respondents.' By statute in Maine, actions for slander and libel survive, and may be maintained in the name of the executor or administrator. A right of action for slander or libel is not assignable, and does not pass under a general assignment to a receiver by a judgment creditor or to an assignee in bankruptcy.3

300. By statute in New York, Michigan, and elsewhere, a married woman may sue alone and without her husband, for slander or libel; and so, under certain conditions, in Pennsylvania,5 and in Scotland. It has been held that the New York statute does not authorize a suit for slander by a wife against her husband. And it was held in Pennsylvania, that a married woman could not maintain an action for slander published at the instance of her husband. 8

§ 301. Independently of any statutory provision for language actionable per se, published concerning a married woman, or concerning a voman who afterwards mar

This was done in Sanford v. Bennett, 24 N. Y. 20; Spooner v. Keeler, 51 N. Y. 528; and as to death of plaintiff, see Miller v. Gunn, 7 How. Pr. R. 380.

Nutting v. Goodridge, 46 Maine, 82. In Iowa, by statute, an action of libel is not abated by the death of the defendant. (Carson v. McFadden, 10 Iowa [2 With.] 91.) Death of a defendant after an appeal, held to abate the appeal. (Long v. Hitchcock, 3 Ham. 274.) If after verdict and before judgment the defendant is adjudged bankrupt, the plaintiff may continue the action. (Zimmer v. Schleehauf, 115 Mass. 52.)

Hudson v. Plets. 11 Paige, 180; and see Dowling v. Brown, 4 Irish Law Rep. N. S. 265; Benson v. Flowers, Sir W. Jones, 215; Howard v. Crowther, 8 M. & W. 601; Drake v. Beckham, 11 M. & W. 315, overruling s. c. 8 M. & W. 846. In Indiana a cause of action for slander was held to constitute the plaintiff a creditor of the defendant, so as to render a conveyance made to defeat any judgment that might be obtained for such cause of action fraudulent. (Shean v. Shay, 42 Ind. 375.)

4 Laws of N. Y. 1860, ch. 90; Id. 1862, ch. 172; Leonard v. Pope, 27 Mich. 145; Ramsden v. Brierley, Law Rep. 10 Q. B. 147.

Rangler v. Hummell, 37 Penn. St. R. 130.

6

Ewing v. Cullen, Boyd Kinnear's Dig. H. L. Cas. 188.

Freethy v. Freethy, 42 Barb. 641. As to the right of a wife to protection against slander by her husband, see Deut. xxii, 13, 22.

8 Tibbs v. Brown, 2 Grant's Cas. (Penn.) 39.

ries, the action should be brought in the name of the husband and wife. In such a case the damage is to both plaintiffs, and the right of action in case of the death of the husband survives to the wife; but if the wife dies before verdict, the action abates. For language concerning a married woman, but actionable only because of special damage to the husband, the husband must sue alone. These rules are not affected by the fact that the husband and wife live apart under a deed of separation.+ Where an action was brought by a wife living apart from her husband under articles of separation, in the names of her husband and herself, for defamatory words spoken of her, it was held that a release of the cause of action executed by the husband was a bar to the suit, although in the articles of separation the husband had covenanted that suits might be brought in the joint names of himself and his wife, for any injury to the person or character of the wife. For a charge of a joint larceny by husband and wife, semble the husband should sue alone, because the wife is prima facie not liable criminally for a larceny committed in the presence of her husband."

1 I Stark. Slan. 349; Ebersoll v. Krug, 3 Binney, 555; Newton v. Rowe, 8 Sc. N. R. 26; Dengate v. Gardiner, 4 M. & W. 5 ; Grove v. Hart, Sayre, 33; Baldwin v. Flower, 3 Mod. 120; Long v. Long, 4 Barr, 29.

Stroop z. Swartz, 12 S. & R. 76; and see Smith v. Hixon, Str. 977, and 3 T. R. 627. Case for words by husband and wife against defendants, husband and wife; pending the action the male defendant died, and his widow remarried. The court inclined that the writ abated, but took time to advise. (White v. Harwood, Style, 138; Viner's Abr. Baron and Feme, A, a.)

3 Williams v. Holdridge, 22 Barb. 396; Gazynski v. Colburn, 11 Cush. 10; Grove v. Hart, Bull. N. P. 7; Saville v. Sweeney, 1 Nev. & M. 254; 4 B. & Adol. 514; Horton v. Byles, 1 Sid. 387; Long v. Long, 4 Barr, 29; 1 Stark. Slan. 350; Bash v. Sommer, 20 Penn. St. R. 159; Coleman v. Harcourt, I Lev. 140; Klein v. Hentz, 2 Duer, 633.

Beach v. Ranney, 2 Hill, 309.

Beach v. Beach, 2 Hill, 260.

Bash v. Sommer, 20 Penn. St. R. 159. And where the defendant charged plaintiff's wife with keeping a bawdy-house, it was held the husband might sue alone, as the words charged an indictable offense, for which, if true, the husband was liable to be punished. (Coward v. Wellington, 7 C. & P. 531.)