1794. C. Bryan, S. Orr, and J. Neufville jointly, and not by the defendants only. To which there was a general demurrer, and joinder.

MITCHELL against TARBUTT.

Giles, in support of the demurrer, was stopped by the Court. Wood contra. If the declaration had charged a personal tort on the defendants themselves, the demurrer to the plea might have been sustained: because it might have been said to have been the separate trespass of each of the parties; but the injury is expressly alleged to have happened by the act of their servant, in which case one of the parties cannot be answerable more than another. And that is the distinction between trespass and case: in the former each person to whom the act is referable is liable but in case all the parties who are answerable should be sued jointly; especially where, as in the present instance, the act complained of is not done by themselves personally. The liability of the defendants arises from their being partners of the ship, and jointly responsible for the acts of their servants: and as they could not have sued alone for any damage done to their own vessel under these circumstances, so neither ought they to be severally answerable for the acts of others. In Boson v. Sandford (a), which was an action upon the case in which the plaintiff declared against the defendants as owners of a bark in which his goods were, and shewed that they were damaged by negligence; on a special verdict found,it was adjudged by Holl,Ch.J.,Gregory, and Eyres, that this was a good defence, even on not guilty pleaded; but Dolben thought that it should have been pleaded in abatement. The difference of opinion, therefore, was only as to the mode in which the defendant should take advantage of the objection; for all the Court agreed, that he was entitled to avail himself of it in some shape or other. And to that difference must be referred the distinction which was taken between actions arising ex contractu et ex delicto. But that such a plea in abatement may be pleaded even to actions on the case in tort, appears from a case as far back as the year books 7 H. 4. 8. (b). A man brought a writ of trespass on the case against the abbot of Stratford, and counted that he held certain land in the vill, by reason whereof he ought to repair a wall on the bank of

(a) Skin. 278. Fide 1 Com. Dig. tit. Abatement, (F8.) S.,C. Carth. 58. Salk. 440. 3 Lev. 958. Vide also 2 Show. 446. 1 Show. 28. 101.

(b) Vide Bro. Abr. tit, Joint tenancy, pl. 12. the possession of Skrene is referred to, as one which was not denied; but the case does not appear to have been decided on that ground.

the

the Thames; that plaintiff had lands adjoining, and that for default of reparation of the wall, his meadows and pastures were drowned with water. To which Skrene says, it may be that the abbot had nothing in the land, by cause whereof he should be charged but jointly with another; or otherwise, that the plaintiff had nothing in the land which was supposed to be surrounded with water, but jointly; in which case the one cannot answer without the other; nor can the plaintiff sue any action without the joint feoffee. Upon the whole; though this would not be a good plea to an action of trespass vi et armis, or even if the defendants had been personally charged with the act which occasioned the loss; yet to an action on the case, where they are only charged by reason of their relation to a third person, and of their joint property in the ship, the plea may be maintained. Lord KENYON, Ch. J.-With regard to the last case cited, there certainly is a distinction in the books between cases respecting real property and personal actions: where there is any dispute about the title to land, all the parties must be brought before the Court. But upon this question it is impossible to raise a doubt. I have seen the case of Boson v. Sandford, in the different books in which it is reported, in all of which this doctrine is clearly established, that if the cause of action arise ex contractu, the plaintiff must sue all the contracting parties; but where it arises ex delicto, the plaintiff may sue all or any of the parties, upon each of whom individually a separate trespass attaches. The case of Boson v. Sandford was treated by the whole Court as an action for a breach of contract; there indeed it was also determined that the defendant might take advantage of the objection, that all the contracting parties were not sued, on the plea of non assumpsit, but that being found inconvenient, a contrary doctrine has been since established (a). But this being an action ex delicto, the trespass is several: and it is immaterial whether the tort were committed by the defendant or his servant, because the rule applies qui facit per alium, facit per se.

GROSE, J.-The same distinction between the actions of tort and assumpsit was laid down in Child v. Sand; Carth. 294.

LAWRENCE, J.-In Carth. 171. it was held that an action for a false return to a mandamus was founded on a tort, and that "therefore it might be either joint or several, at the election of "the party, as in trespass," &c. Judgment for the plaintiff (b).

(a) Vide Rice v. Shute, 5 Burr. 2511. Abbot v. Smith, ih. 2614, 5.; and Germaine v. Frederic, Tr. 25 Geo. 3. B. R..

(b) Fide Bristow v. James, post. 7 vol. 257.

1794.

MITCHELL

against TARBUTT.

1794.

Friday, DOE, on the Demise of LUCY FREESTONE, against EDWARD

June 27th.

A mortga gee of copyhold estate

in posses

forfeited

mortgage, and consi

dered as ir redeemable, devised it as

land to husband and

the convey

husband

currence of

his wife,

passes no interest

against the wife sur

viving.

THIS

PARRATT and MARY his Wife.

THIS was an ejectment for the recovery of two messuages in the parish of Caddington in the county of Herts, in sion under a which a verdict was found for the plaintiff, subject to the opinion of the Court on these facts: The premises in question are copyhold, holden of the manor of Markgate in the county of Herts. On the 24 October 1741, Thomas Osbourn, then being the customary tenant of the same, surrendered them to the use of Mary Eames of Dunstable in the county of Bedford, widow, her heirs wife in fec. and assigns, upon condition that if Osbourn, his heirs, &c. did and ance of the should pay to the said M. Eumes, her executors, &c. 617. 10s. alone with- on the 3d April next ensuing the date thereof, the said surrender out the con- should be void. The surrender was presented at a court baron of the said manor, on 22d October 1742, and default having been made in the payment of the said 611. 10s. Mary Eames came in upon proclamation, and was admitted tenant of the premises, on the 10th June 1743, saving to every one his, her, or their right, to hold to her the said M. Eames, her heirs and assigns for ever. M. Eames thereupon entered, and received the rents from thence until her death in 1756; having previously, namely, on the 1st April 1749, surrendered to the use of her will. On the 5th August 1750, M. Eames "devised her copyhold estate, &c. (being the premises in question) and the reversion, &c. to her nephew in "law John Freestone and Lucy his wife, and to their heirs and as"signs for ever." Then after bequeathing some small legacies, "she gave her ready money,money out at interest on any security "or securities whatsoever, and personal estate whatsoever, not "therein before bequeathed, unto the said J. Freestone, his exe"cutors, &c. for ever." And she appointed the said J. Freestone sole executor. On 20th April 1757, J. Freestone was admitted tenant to the premises to hold to him in fee. He entered accordingly, and received the rents and profits till the 14th May 1774, where he surrendered the same to James Rickson in fee, who was thereupon admitted. Rickson afterwards died, having previously surrendered to the use of his will; and thereby devised the same to his wife Mary Rickson in fee. On 13th June 1777 M. Rickson was admitted tenant in fee; and she afterwards married the de

66

fendant.

fendant. On 7th January 1782 the defendant Edward and his wife, surrendered to the use of the husband for their joint lives and the life of the survivor, remainder to their children as tenants in common; and on 11th December 1782 they were admitted accordingly. John Freestone died about four years ago (1790), and on 22d November 1791 Lucy Freestone the lessor of the plaintiff, was admitted to the premises in question, as surviving devisee under the will of the said Mary Eames, to hold to her in fee. The questions submitted to the Court were, Whether the lessor of the plaintiff was entitled to recover for the whole or a moiety; or a verdict should be entered for the defendant generally?

Lawes was to have argued on behalf of the lessor of the plaintiff, but the Court desired to hear the other side (a).

Const for the defendant, admitting that if the devisor were to be considered as seised in fee of the premises devised, and that an estate in fee passed by the devise, the husband could not divest the estate of his wife by his surrender contended that such a property only passed by the will, as the husband might, during his life, part with to another. Mrs. Eames was only admitted to the premises as mortgagee in fee, and having never acquired the equity of redemption, she could only convey the same estate which she had. The premises still continued subject to the equity of redemption, which consisted in Osbourn there is no evidence that it was released; and sufficient time has not elapsed to raise such a presumption. The case of Bates v. Danby (b) is directly in point. There it was held that a husband might dispose of his wife's mortgage in fee; and an incumbrance which he had created upon it was held valid against his widow, even though no legal assignment of it had been made by him at the time, but the whole rested in agreement. So in Bosvill v. Brander (c) where a feme sole mortgagee in fee married a person who afterwards became bankrupt and died, it was held that his assignees, and not the wife, were entitled to the mortgage; and the Master of the Rolls said that the legal estate of the inheritance of the lands in mortgage continuing in the wife made no difference, it being no more than a trust of the assignces; like the common case where upon the death of a mortgagee in fee, the (a) Vide Powel on mortgages, 2d edit. 298. 306. Martin d. Weston v. Mowling, 2 Burr. 969. Vide also 2 Com. Dig. 556. tit. Baron & Feme. (D. 2.) Callhr. 92. Co. Lil. 187. s. 291. Fitz. N. B. 446. writ of cui in vita. Shep. Touch. 203. Perk. s. 223. 32 Hen. 8 c. 28. s. 6.

1794.

Doy against PARRATI.

(b) 2 tk. 207.

(c) 1 Pr. Will. 458.

mortgage

1794.

DOE against

mortgage money belongs to the executor, though the heir takes the legal estate by descent; and she is only a trustee for the exe cutor. And he added, that if the wife brought an ejectment PARRATT. she would be injoined in equity. Now here, though the legal estate might continue in the wife, yet she is no more than a formal trustee for those who claim under her husband. And in Armstrong v. Pierce (a) the court said, they considered it as a settled point, that the formal title of a trustee should not be set up in ejectment against the cestui que trust, because from the nature of the two rights the cestui que trust is to have the possession. In Martin v. Mowling (b), a copyhold having been mortgaged in fee, and the mortgage forfeited, the mortgagee devised it to his son and his wife, and the heirs of their bodies; the son alone afterwards surrendered it to the use of another in the life-time of his wife; and it was held that the surrender was good, according to the apparent intent of the parties to consider this as personal property. There the ejectment was brought by the heir at law, but the Court gave judgment for the defendant, who claimed under the surrender. But at any rate, if the plaintiff be enti tled to recover at all, it can only be for a moiety; for certainly the husband might dispose of his moiety without the concur rence of his wife.

Lord KENYON, Ch. J.-We are now in a court of law, and we are called upon to decide on the legal rights of the parties, It seems to me, from the manner in which the case is drawn, that it was intended to be argued, that the devise in the first will to the nephew J. Freestone and L. his wife, created a joint tenancy, but that question has been properly abandoned; for though a devise to A. and B., who are strangers to, and have no connection with each other, creates a joint tenancy the conveyance by one of whom severs the joint tenancy and passes a moiety, yet it has been settled for ages, that when the devise is to the husband and wife, they take by entireties, and not by moieties, and the hus band alone cannot by his own conveyance, without joining his wife, devest the estate of the wife. This is sufficient to warrant us, sitting in a court of law, in determining in favour of the present plaintiff. But even in a court of equity it cannot be said that the legal estate belongs to the persons entitled to the beneficial interest: if it did, there would have been no occasion for