1814, MS. 3 M. & S. 191. So, a master is entitled to the benefit of any contracts his apprentice may make for himself, and to all property acquired by his labour. &c. during his apprenticeship; but this is not the case with the contracts or property of hired servants. See Co. Litt. 117 a. For a battery or other personal injury to the servant, the master may maintain an action, 1 And. 13. 9 Co. 113. 10 Co. 131. Styl. 94. 2 Bulst. 198. 1 Sid. 175. Cro. Jac. 618. 1 Ro. Rep. 393, provided he have thereby lost the service of the servant, 2 Ro. Abr. 682, for any time, however short; but if the servant be killed, the master has no remedy, the private injury being merged in the public crime. Yelv. 89, 90. Browl. 205. 2 Ro. Abr. 568. 1 Salk 11. So, if a master lose the service of his servant, through the negligence or want of skill of the surgeon or physician who has undertaken his cure, he may maintain an action against the surgeon or physician. 1 Ro. Abr. 98. 1 Ro. Rep. 124. 2 Bulst. 332. Or if he lose the service of a female servant, by reason of her seduction, he may maintain an action against the seducer; Peake, 55.; upon which ground it is, that a parent now recovers damages for the seduction of his daughter, the action in such a case not being maintainable unless laid with a per quod servitium amisit. 5 East, 47, n. and see 5 East, 45. 2 T. R. 167.

But although the master may maintain an action for a personal injury to his servant, yet the servant is not thereby precluded from bringing an action and recovering damages for the same injury. If a servant be robbed of his master's property, either master or servant may bring an action against the hundred. 4 Mod. 303. See Stamf. 60. Bro. Appeal, 92. Latch. 127. A mere servant, however, who has no interest in the contract to his master, cannot maintain an action for the nonperformance of it, although it be made to himself (as servant to his master) by name. 3 B. & P. 147. Nor can a mere servant maintain trespass or trover for goods of his master taken out of his possession, or an action for any injury to them in his possession, if he have no interest in them; for they are in law considered to all intents and purposes as in the possession of the master.

If an agent in this country make a contract for a person beyond sea, the agent may sue for the non-performance of it; as if a factor here sell goods for a person beyond sea, he may sue for the price of them. Bul. N. P. 130. So, in all other cases where a factor sells goods upon commission, he may sue for the price of them, although his principal be in this country. Id. As a factor's sale, however, creates a contract in law between the principal and the buyer, the principal, by notice to the buyer, may prevent the price from being paid to the factor, and may maintain an action for it, Cowp. 255, even although the factor sold

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upon a del credere commission. 2 Str. 1182. So, where goods are sold by auction, an action for the price of them may be brought either by the auctioneer, 1 H. Bl. 81, or by the owner. So, the action upon a policy of insurance may be brought either by the person in whose name it was effected, or by the person actually interested. Park, 403. But where an agent, having received several sums of money for A., B., and C., paid the gross amount into the bank of D., it was holden that A. could not maintain an action against D. for his portion of the money so lodged with him; 1 Marsh. 132; although had A's portion been lodged separately with D., it would have been otherwise. Also it seems, that where a factor deals with the buyer as if the goods were his own, and conceals the name of his principal, if an action be afterwards brought by the principal for the price of them, the buyer may set off a debt due to him by the factor. 7 T. R. 360 n., but see Escot v. Milward, Co. B. L. 456, contra. If a broker, on the contrary, sell the goods of his principal, and the principal bring an action for the amount of them against the buyer, the latter cannot set off a debt due to him by the broker; 2 Barn. & Ald. 137; for a broker and a factor are very different persons; the latter is intrusted with the possession of the goods, and may sell them without disclosing the name of his principal; the former has not the possession of the goods, but is entrusted merely to make the contract between the seller and the buyer, for which he receives a certain remuneration, and is not otherwise interested. Id. As to injuries to goods, &c. in the hands of an agent or factor, who is interested in them to the extent of his commission or brokerage, he is deemed in law to have a special property in them, and may maintain trespass or trover against a stranger who takes them from him, or trespass for any forcible injury to them whilst in his possession, in the same manner as a bailee; or the action may be brought by the principal. But where goods are shipped, consigned to an agent, an action against the captain of the ship, for negligence in stowing them, 2 New Rep. 411, or an action of trover for them, 4 East, 211, must be brought by the principal, and not by the agent.

But in the case of officer and deputy, where the principal is legally responsible for the deputy, for all causes of action arising to them in relation to their office, the action must be brought in the name of the officer and not of the deputy, even although the deputy be in fact entitled to any damage, &c. which may be recovered. Thus an action upon stat. 29 Eliz. c. 4, for fees, must be brought in the name of the sheriff, and not in that of his bailiff. 2 T. R. 155-158.

A master of a ship is not considered in law as a mere servant, but may bring an action for freight, or upon any other contract made with

him on account of the ship. 6 Taunt. 65. So, he may maintain trespass for detaining the ship, 1 Salk. 10. 1 Ld. Raym, 558, or any other action, it should seem, which can be maintained by a bailee.

And lastly, in the case of bailment, as where goods are deposited with a person to keep, or given to a carrier to carry or pledged for a sum of money, or distrained for rent, &c. or if clothes be given to a tailor to make, or to a laundress to wash, or the like; if the goods be taken out of the possession of the bailee, either bailor or bailee may bring an action of replevin, Co. Lit. 145 b., trespass, 2 Rol. 551, 1. 25, 31, 569; 1. 17, 22, 25. 20 H. 7, 1. a., or trover, R. 1. Rol. 4. l. 52. So if any injury be done to the goods whilst in possession of the bailee, either bailee or bailor may maintain trespass or case, according to circumstances. See 1 Barn. & Ald. 59.

Tenant and Reversioner.] If a rivulet which runs between two *closes, be stopped by the occupier of one of them, by which means the other is flooded and the timber trees rotted, &c. ; if the close so injured be in the occupation of a tenant for a term of years, the termor and the reversioner may each maintain an action against the wrong-doer; the termor, for the loss of the shade and shelter of the trees, &c.; the reversioner, for the damage done to the inheritance. 3 Lev. 209. See 2 Ro. Abr. 55. 4 Burr. 2141. acc. So in all cases where a trespass is of such a permanent nature as to be injurious not only to the tenant in possession, but also to the inheritance generally; the termor may have his remedy by an action of trespass, and the reversioner by action on the case. Ante, p. 9, 10, 16. But in all other cases for an injury to land, not amounting to an ouster, the action must be brought by the tenant in actual possession.

Assignee.] If a reversioner assign his reversion, the assignee may have an action of debt for rent, 5 H. 7, 18 b, 19 a. Bro. Dette. 141. 1 Ro. Abr. 591. 3 Co. 22 b. 4 Mod. 81. 3 Mod. 338, or covenant for a breach of any covenant running with the land, 1 Saund. 237. See Bro. Sum & Sev. 6., against the lessee; or if the lessee have assigned his term, the assignee of the reversion may in like manner have debt or covenant against the assignee of the term; 3 Mod. 337, 338, 1 Show. 199. Carth. 182. 1 Salk. 80, 81; and if the assignment have been to two, the action must be by both. 1 B. & P. 67. 1 Sid. 157. 1 Lev. 109. L. Raym. 80. So the assignee of the term may have an action of covenant against the lessor or his assignee, for breach of any covenant running with the land. Cro. El. 373. 436. Moor, 419. 5 Co. 17, a. And the same of a devisee, to whom a reversion or term is devised. See 4 M. & S. 53.

After an assignment or sale of goods and chattels, that is, after the

actions relating to them must be Thus, where the vendor sends the carrier, an action against the carri

sale is completed by delivery, all brought by the assignee or vendec. goods purchased to the vendee by a er for the loss of the goods must be brought by the vendee and not by the vendor, whether the carrier were named by the vendee, 8 T. R. 330, or not. 3 B. & P. 582. See Cowp. 294. 5 Bur. 2680. 1 Bulst. 68. Hardr. 321. 1 T. R. 659. So trover or other action for goods shipped on board of a ship, must be brought by the consignee; see 1 Marsh. 323; unless such consignee be merely an agent. 4 East, 211. 3 B. & A. 277. But the rule in these cases may be controlled by an agreement between the parties as if the vendor agree to deliver the goods carriage free, or upon being paid so much for the carriage of them; as the property in the goods cannot in that case vest in the vendee, until they are actually placed in his custody and possession, he cannot maintain any action for a cause of action relating to them accruing before that time.

As to choses in action: by the strict rule of law they cannot be assigned; and consequently no person can maintain an action in his own name as assignee of them. There are a few exceptions, however, to this rule the assignee of a bail-bond may sue upon it in his own name, by stat. 4 Ann. c. 16, s. 20; see 1 Arch. Pr. C. B. 68; the assignee of a replevin bond may sue upon it in his own *name, by stat. 11 G. 2, c. 19, s. 23; see 2 Arch. Pr. C. B. 64; and the indorsee of a bill of exchange, or promissory note, may sue upon it in his own name, by the law merchant. So, the assignees of a bankrupt may sue for a chose in action of the bankrupt, in their own name, by stat. 6 G. 4, c. 16, s. 63; but if an action were already commenced by the bankrupt before his bankruptcy, the assignees must proceed to judgment in his name, and then make themselves parties to the record by scire facias. 2 Arch. Pr. C. B. 139.

Executors, &c.] Executors or administrators may sue in their own name, as executors, &c. for all causes of action for which their testator or intestate might have maintained an action, except for injuries to the person. See 2 Arch. Pr. C. B. [26] 307, and see post B. 4. And for all injuries to the real estate of the deceased, committed in his life-time and within six months of his decease, and for which he might have maintained an action, his executors or administrators may have an action, of trespass or trespass on the case, as the case may be, within one year after his decease; and the damages recovered shall be assets. & 4 W. 4, c. 42, s. 2. If a debtor make his creditor and another his executors, and the creditor never intermeddle, but refuse to act, such creditor may bring an action against the other executor for the amount of his debt. W. Jon. 345. 3 T. R. 557. As to feme executrix, see ante,

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p. 39, "Barron and Feme;" and as to the joinder of executors, see post.

Care must be taken that the plaintiff or plaintiffs be correctly named in the declaration; for although misnomer is not now pleadable in abatement, 3 & 4 W. 4, c. 42, s. 11, yet the defendant may oblige the plaintiff to amend his declaration in this respect, and to pay the costs of the amendment. Id. see Arch. Pr. C. B. 119, 120. Care must also be taken to state the name correctly in the writ; for if there be a variance between the writ and declaration in this respect, the court upon application would set aside the proceedings for irregularity.

SECT. 2.

Joinder of Plaintiffs.

Parceners.] As parceners are considered in law as making but one heir they must consequently sue jointly in all actions brought by them for the recovery of their inheritance, before partition. Co. L. 164 a. Therefore if parceners be disseised, they must join in the action. Co. L. 164 a. Bro. Several Prec. 1. So, if a man be disseised and die, and his title descend to parceners, they must join in the action. Co. Lit. 164 a. But if parceners be disseised and die, their heirs must sue severally, and not jointly because the right descending is in this case several, although after recovery they be parceners again. Bro. Several Prec. 1. Joinder in Action, 43. In replevin, the defendant cannot make conusance as bailiff to one coparcener, for a moiety of the rent. 5 Mod. 141. 1 L. Raym, 64. Skin 596. Carth. 364. So one parcener cannot avow for her moiety of the rent, but must avow in her own right, and as bailiff to the other, for the entire rent. 1 Salk. 390. Carth. 364. so in trespass or case for any damage done to their land, parceners must join.

But after parceners have made partition, they cannot recover in a joint action, or on a joint demise in ejectment; 1 Bac. Abr. Coparceners B.; because their seisin is no longer joint, but several. So, if parceners in tail alien and die, the issue must have several actions; because the alienation was a partition in law. Bro. Coparcener, 2.

Joint-tenants.] Joint-tenants must join in all real and mixed actions, for they have but one joint title and one freehold. Co. Lit. 189 a, 195 b. And therefore they ought to join in a writ of right, Præcipe quod reddat, assize, waste, quare impedit, &c.; Th. D. l. 2, c. 2 ; [and in ejectment, the declaration must be upon their own demise. All real actions, how