Part owners of a vessel must all unite in an action to recover freight, whether the action is against the shipper or the person to whom it has been paid. 1 But if a portion of such owners refuse to join as plaintiffs, they may be made defendants. 2 Part owners of a chattel must unite in an action for the recovery of the chattel or its value. 8 The reason as stated by the Supreme Court of California is, that the law will not tolerate the division of a joint right of action into several actions. 4 Part owners of real estate need not unite in an action to recover possession; but each may bring a separate suit for his portion. 5 The action must be brought by one or all, as a portion greater than one cannot maintain the action. The same rule applies to the recovery of a fund derived from the condemnation of land. But if the action is to recover the entire tract, all the owners must join. One of the reasons why part owners must join in an action to recover the possession of a chattel, and need not in an action to recover possession of a separate portion of real estate, is, that the ownership of the chattel in such case is joint, and the statute does not provide for partition, whereas in real estate the interest in each co-owner is separate and he may compel partition at any time." In an action for rent, if the lease is joint, or the rent is to be paid to all the owners, all must join; but if each is to receive a specific portion, he alone should sue for the same. The character of the lease will determine the form of the action. 1 Merritt v. Walsh, 32 N. Y. 685; Donnell v. Walsh, 33 Id. 43. 2 Coster v. N. Y. & E. R., 5 Duer, 677. * Wells v. Cone, 55 Barb. 585; Frans v. Young, 24 Ia. 375. "Nightingale v. Scannell, 6 Cal. 506. 7 The common law furnishes no means by which the partition of personal property can be effected. The co-owner of a chattel can maintain an action against his co-tenant only where he has sold the chattel, or caused loss or injury to the same. Courts of equity, however, in a proper case, will order partition, and if that is impossible, order a sale of the property and divide the fund. Tripp v.. Riley, 15 Barb. 333; Fobes v. Shattuck, 22 Id. 568; Tinney v. Stebbins, 28 Id. 290; Wetmore v. Zabriskie, 29 N. J. Eq. 62; Marshall v. Crow's Adm. 29 Ala. 278; Conover v. Earl. 26 Ia. 167; Pom. Eq. § 1391 and notes. At common law, if two or more persons were joined as plaintiffs in an action on contract, and on trial they failed to establish a joint right, the court will order a non-suit. A different rule, however, prevailed in courts of equity, and on the hearing a decree would be rendered in favor of certain complainants and the bill be dismissed as to the others. The code has abolished the distinction between legal and equitable actions, and this applies to parties as well as the rules of procedure. The language is plain and unambiguous: The distinctions between actions at law and suits in equity, and the form of all such actions and the suits heretofore existing, are abolished; and in their place there shall be hereafter but one form of action, which shall be called a civil action." 66 The court is authorized to permit a party to amend any pleading or proceeding by striking out the name of any party or correcting a mistake in the name or inserting other allegations. The equity rule undoubtedly applies in all cases, in actions at law as well as in equity, and it is the duty of the court in a joint action to render judgment in favor of such of the plaintiffs as the testimony shows are entitled to recover, and dismiss the action as to the others. A few cases may be found in which it is held that in an action at law, if the proof fails to sustain the action as to all the plaintiffs, there is a failure of proof; but those cases are contrary to the theory and spirit of the code. Tenants in common of real estate must join in a personal action for injury to the same which does not affect the title. The injury being to all, several actions for the same trespass cannot be maintained, 1 Partners should join in any matter relating to the partnership business, or for injury to the partnership property, or for fraud practiced upon them in the purchase of property, 2 or for falsely recommending an insolvent person as worthy of credit, or for libel concerning the partnership business. * On the death of a partner, the surviving partner or part 1 Chitty Pl. 65. 2 Medbury v. Watson, 6 Metc. 246. ' Patten v. Gurney, 17 Mass. 182. ners are entitled to the exclusive possession of the firm assets for the purpose of settling up the affairs of the firm. And they alone can maintain actions to recover the debts, or for the possession of the firm property or its value. The reason is, a claim in favor of or against partners is a joint demand; that is, is a demand in favor of or against all the members as one person-the firm, and the interest of each member is in the general stock or fund after all the debts have been paid, and there is no individual ownership of any of the goods or funds. Hence, the right of the surviving partners to settle up the joint estate. If a member of a firm be dead, that fact should be stated in the petition, and the action will be carried on by or against the survivor. The survivor is the proper party to sue, yet if he transfer any of the assets to the administrator of a deceased partner, he as assignee can maintain an action thereon. 1 Tenants in common. S. & H., being the owners of a tract of land, made partition of the same, and afterward sold to several purchasers who made improvements thereon. L. afterward recovered in ejectment the portion of land sold by H. The purchasers from S. then filed a bill against S., H. & L. to protect their several interests under the void partition, and the action was sustained. 2 But tenants in common who hold by different conveyances from the same grantor, cannot unite to recover damages for a breach of the several covenants in their deeds. 8 Joint right arising from torts. The code does not seem to have changed the common law rule as to plaintiffs in such actions. Where the injury is common to all, they must unite in an action to recover damages. particularly to partners. This rule will apply more lished concerning them in their joint business; for false and fraudulent representations made to them representing an insolvent person as worthy to be trusted. Thus, in Zabriskie v. Smith, 13 N. Y. 322, where goods had been obtained upon the false and fraudulent representation of one that the purchaser was solvent, the action was brought by three out of four partners. The court held that the Where the injury is not joint, and no joint damages have been sustained, each person injured must bring a separate action. Therefore, a fire company, not being a partnership, cannot jointly maintain an action for libel or slander, the right of action being several. Election in cases of tort. In many cases the plaintiff may elect whether he will bring his action upon contract or in tort, as where the defendant being in possession of the plaintiff's property sells the same, the plaintiff may ratify the sale by bringing an action to recover the price, in which case he will allege that the defendant being in possession of the plaintiff's property (describing it), sold the same for a certain amount, which he refuses to pay the plaintiff, or if he allege the wrongful taking and conversion, he may recover the full value of the property, without regard to the amount for which it was sold. 2 And where there is both a contract and legal duty, as where a party employs an attorney, physician, common carrier, etc., to perform certain acts in the line of his business which he neglects, whereby damages are sustained, the injured party may sue for the wrong done him, or may sue upon the agreement. 3 In nearly all the cases of this character, however, there can be no breach of legal duty except as it arises from the contract, and the plaintiff must rely upon the agreement alone, as in most cases the action is not maintainable without right of action was joint, and the action should be brought by all, but as no objection on that ground had been made at the proper time, it was waived. But if there is no bond of legal union between the parties such as partnership, when the tort was committed, so that the injury was not to the entity-the firm, but to the individuals separately, the action should be several. If a husband and wife are assaulted and beaten or libeled, notwithstanding the close legal relation between them, the injury is several and 1 Girard v. Beach, 3 E. D. Smith, 337; Stepanck v. Kula, 36 Iowa, 563; Hinkle v. Davenport, 38 Id. 355. See Bliss Code Pl., §§ 13, 14, for not joint. Pom. Rem., § 231. And the same rule applies where a mere voluntary association, like a fire company, is libeled and brings an action for the injury. Girard v. Beach, 3 E. D. Smith, 337; Hinkle v. Davenport, 38 Iowa, 355; Stepanck v. Kula, 36 Id. 563; Pom. Rem. Rights, § 231. If, however, the association was incorporated a different rule would prevail. The petition should show a joint right—one that from its nature exists in favor of all the plaintiffs. Bliss Code Pl., § 24. a full statement of the law upon these points. Also Swan's Pl. and Pr. 48-9. 3 Bliss Code Pl., § 14. alleging a contract, express or implied, and a breach of duty arising therefrom. 1 Injuries to servants, etc. A servant may maintain an action for an injury to himself, and his master may also maintain an action for the injury where there is a loss of service which occasions damage. Seduction. The only remedy at common law for the seduction of a female servant is of this kind. In actions of the kind last mentioned, there being no other common law remedy, the courts are disposed to place a very liberal construction upon the words "service" and "loss of service." Thus, a daughter is regarded as servant of the father, if living, if not, then of the mother, and she may maintain the action. 2 If the daughter is a minor, loss of service will be presumed, even if she is in actual service of another, if the parent has a right to her service, or is liable for her support. 3 The action being based on the loss of service, the fact that the daughter is of full age is not material. 4 The person entitled to the service would seem to be to be the proper party to bring the action. 5 In several of the states statutes have been passed providing an adequate remedy, and such legislation is necessary in all. In an action by the next of kin or distributees against the administrator for an account, all of the next of kin or distributees should be made plaintiffs, if they consent; if not, 1 See Swan's Pl. and Pr. 173-4. Hart v. Barns, 24 Neb. 782. In this case it is said, " In case of bailment there has always been a choice of forms of action, between actions on the case and assumpsit. ⚫ Case lies for a breach of duty and assumpsit for breach of promise. A duty arises out of a promise and the law implies a promise out of most duties. F. N. Bank v. Fonda, 32 N. W. R. 665; Railroad v. Peoples, 31 0. S. 543. 2 Furman v. Van Sise, 56 N. Y. 435. The nominal cause is for service, but the real ground of the action is the mortification and disgrace suffered by the plaintiff and her father's family, and where there is any proof of service, the relation of master and servant between parent and child will be established and the plaintiff entitled to recover. Moran v. Dawes, 4 Cow. 412; Badgley v. Decker, 44 Barb. 577; Ingerson v. Miller, 47 Barb. 47; Lavery v. Crooke, 52 Wis. 612, 38 Am. R. 768. 3 Martin v. Payne, 9 Johns. 387; Clark v. Fitch, 2 Wend. 459; Mulvehall v. Millward, 11 N. Y. 343. • Cooley on Torts, p. 231, note. 5 See Cooley on Torts, 231-32, and cases cited. |