use. It was originally founded on the fiction that the wrong-doer had found (trouver to find), and refused to give up the goods of the rightful owner.

Trespass. An action for any direct injury to, or wrongful meddling with, the person or property of another.

Case. Formerly, when a special and appropriate form of writ was used for each claim, and a claim arose, which did not come within any of the precedents, a new form of writ was issued, "in consimili casu," by the clerks in chancery, by virtue of the statute of Westminster 2

C.

24.

An action" on the case" lies for damages indirectly

consequential on the wrongful act, whereas trespass only lies for directly consequent damages.

Replevin. See post, Book III. Part III. Chap. II.

1. Persons of unsound mind are incapable of instituting a suit : but the Court will, on application, appoint a committee to act for them.

2. Infants may sue in tort, by their prochein amy, or next friend; and may by their guardians be sued in tort; and also, for "necessaries," in contract. (a)

3. Married women cannot appoint an attorney or sue, or be sued, unless the husband is joined.

[But, by joining the husband, they can—

Sue, or be sued, for torts, committed against, or by them, and

B. On contracts entered into with them before marriage.

EXCEPT

(i)

When the husband is civilly dead, i.e. is undergoing penal servitude. (b)

(a) A person on arriving at full age cannot ratify a promise made by him during infancy. 37 & 38 Vict. c. 62.

(b) Jewson v. Read, Loft. 142.

(ii) Or legally dead, i.e. when he has not been heard of for more than seven years. (c)

(iii) When the wife has a judicial separation. In which case she is in the position of a feme sole. (d)

(iv) When, on being deserted by her husband, she has obtained a protection order from the magistrates under the Divorce Court Acts. (e) In which case she is in the same position as a woman who has obtained a judicial separation. (f)

α

She carries on a calling separate from her hus-
band, and has therefrom acquired any
separate property, by virtue of the "Married
Woman's Property Act, 1870," (g) or
Her husband has agreed in writing that any
property she had before marriage should
belong to her as her separate property after
marriage. (h)

She may bring an action for the protection and secu-
rity thereof, in her own name. (i)

(vi) By the custom of the City of London, when she is trading within its precincts on her own account.

[NOTE. But she cannot be made a bankrupt, even where she has separate estate, except where she can be sued, as in cases (i), (ii), (iii), (iv), and (vi). (k)]

§ 1. IN CONTRACTs, no one can sue or be sued who is not a party to the contract.

(c) Hopewell v. De Pinna, 2 Camp. 113.

(d) 20 & 21 Vict. c. 85, s. 26.

(e) 20 & 21 Vict. c. 85, s. 21; 21 & 22 Vict. c. 108, s. 6.

(f) Ramsden v. Brearly, L. R. 10 Q. B. 147.

(g) 33 & 34 Vict. c. 93, s. 1.
(h) 33 & 34 Vict. c. 93, s. 11.
(i) 33 & 34 Vict. c. 93, s. 11
(k) Exp. Jones, 12 Ch. D. 484.

If the contract is made with more than one person, as with a firm of partners, all parties to either side of the contract must be joined in suing, or in being sued, as the case may be.

For example: Smith cannot sue Jones alone on a contract made by him with Jones and Brown jointly, or he would be setting up a contract different to the one really existing.

§ 2. IN TORTS, all who have been directly or indirectly injured by the wrongful act may sue, either separately or jointly. If there are joint wrongdoers, they are all separately liable. $ CORPORATIONS are enabled, either by the Charter, or the Act of Parliament, calling them into existence, to sue and be sued in their corporate name, on all contracts made with them under seal, [and, by certain Acts of Parliament, on contracts not made under seal, see post, Chap. XII.] which are not "ultra vires," i.e. beyond the scope of the purposes for which they were created.

They can also be sued for torts committed by their agents; and for penalties; and can sue for torts committed against them. (a)

The right to bring or defend an action, either of contract or tort, cannot, as a rule, be transferred..

§ But there are exceptions to this rule-

I.

By custom. The right to sue on an assigned debt has been introduced by the invention of bills of exchange (see post, Book II. Chap. IX.)

II. By the common law.—

1. The lessor has the right to sue his lessee's assignee upon covenants in a lease which run with the land (see post, Book II.Chap. X.)

(a) Green v. London General Omnibus Company, 29 L. J. C. P. 13; Pharmaceutical Society v. London Supply Association, 4 Q. B. D. 313; Metropolitan Saloon Omnibus Company v. Hawkins, 28 L. J. Ex. 201.

2. Executors and administrators can sue and be sued in their representative capacity on contracts made with the deceased in his lifetime.

They can also sue for torts done to the property of the deceased.

But they cannot be sued for torts committed by the deceased, unless done within six months of his death (b).

3. Husbands can sue on contracts made with, and on negotiable instruments given to, their wives before marriage; and for injuries to, and on covenants running with, their wives' land; and for all their wives' choses in action.

III. By certain Acts of Parliament.

1. The assignees of the reversion of a lease may sue and are liable to the lessees and assignees of such lease on covenants therein which run with the land. [32 Hen. viii. c. 34.]

2. The transferee of a promissory note may sue the maker. [4 Anne, c. 9, s. 1.]

3. The transferee of a bill of lading may sue the shipper of the goods consigned thereunder. [18 & 19 Vict. c. 111, s. 1.]

4. The assignee of a life or marine policy may sue thereon. [30 & 31 Vict. c. 144, and 31 & 32 Vict. c. 86.]

5. Choses in action belonging to companies which are being wound up are assignable. [25 & 26 Vict. c. 89, s. 157.]

6. A trustee in bankruptcy may bring or defend any action relating to the property of the bankrupt. [32 & 33 Vict. c. 71, s. 25, subs. 2. Bankruptcy Act, 1869.]

(b) 3 & 4 Will. 4, c. 42 s. 2. (Statute of Limitations.)