а II. DEFEN- obliged to pay more than his proportion, may recover against any one of the DANTS. others his proportion of the money paid under the bond, &c. (r)(78). And 1. Who an action at law is sustainable to recover a contribution in the nature of genlegally liaeral average by one shipper of goods against another(s) (79). And if there be ble. Partners, not an actual partnership, one of several parties *interested in profits may in &c. suing each other. general proceed at law against a person who has received his share; thus, if sailor engage on a whaling voyage, and is to receive a certain proportion of the profits of the voyage in lieu of wages, when the cargo is sold he may maintain an action for his wages against the captain, and shall not be considered as a partner (1) (80). And when the agreement between two does not constitute a partnership as between themselves, but only an agreement in favor of one, as a compensation for trouble and credit, he may sue the other, though, as between third persons, both might be liable as partners (u) (81). [46] It is an answer to an action that a party is legally interested in each side of the question. A party cannot be both plaintiff and defendant in an action(x). If, therefore, one of the plaintiffs be also a member of the firm against which the action is brought, upon a contract entered into by the firm, the action shall fail, although the other partners only be sued (y). And where the agent, employed in endeavoring to carry through Parliament a bill for making a railway, sued the chairman of a committee of subscribers to the undertaking for his work and labor, and expenses incurred as such agent, and it appeared that he himself was a subscriber to the undertaking, it was held the action would not lie (z). And in assumpsit by A., B. and C. against D. as one of the indorsers of a promissory note, drawn by E. in favor of himself and of the said C. and D. then in partnership, and by them indorsed to the plaintiffs, a plea in bar that C., one of the plaintiffs, is liable as an indorser, together with the defendant, was held good on special demurrer (a); and in an action by several as executors, a plea in bar that the promises were made by the defendants jointly with one of the plaintiffs, is sufficient (b). So if A. an attorney, and B. and C. were members of a trading company, and after the dissolution of that company, B. and C. be sued by creditors of the company and retain A. (r) 2 B. & P. 263, 270; 8 T. R, 310, 614; 2 T. R. 100; 6 B. & C. 689; 1 Moore, 2. See the distinction in cases of tort, 8 T. R. 186; 1 Campb. 343, 355; 2 Id. 452. But no part of the costs paid or incurred by the one surety, in an action against him on the bond, &c. given for the principal, is recoverable against the co-surety by way of contribution, 3 C. & P. 467. (s) 3 Campb. 180; 1 East, 220; 4 Taunt. 123. (1) 4 Esp. Rep. 182; and see 3 B. & C. (x) 2 B. & P. 124; 5 Chit. Rep. 539, S. C.; 2 Marsh. 319; 6 Taunt. 597; see 9 B. &C. 356. This may be given in evidence under the general issue, 6 Bing. 197. (y) Id. (z) 1 B. & C. 74; 2 D. & R. 196, S. C. (a) 2 B. & P. 120; 2 Marsh. 329; see 8 B. & C. 345. (b) 2 B. & P. 124, note (c); 6 Moore, 332; 1 Went. 17, 18. firm, the payee may maintain an action in his own name. Van Ness v. Forest, 8 Cranch, 30. But if one partner pays the debt of his firm, it is not competent to the creditor to keep the debt alive, and authorize such partner to enforce it against his co-partner. Le Page v. M'Crea, 1 Wend. R. 164. (78) Vide The People v. Duncan, 1 J. R. 311. (79) As in the case of persons running a line of stages, where each has his separate portion of the road, and provides horses and carriages at his own expense and risk. Wetmore v. Cheeseborough, and Baker v. Swan, 9 J. R. 307. (80) See 17 Mass. R. 206. (81) Vide Muzzy v. Whitney et al., 10 J. R. 228. Dry v. Boswell, 1 Camp. 329. DANTS. to defend the action, the latter being, as a member of the company, *jointly п. DEFENliable to contribute to the expense of defending those actions, cannot sue B. and C. for his bill of costs (c). a 1. Who legally liable. A lunatic is liable for goods suitable to his rank supplied to him upon contract, which a person, not aware of his infirmity, bona fide enters into with Partners, him (d). &c. suing each other. reference the defen be sued. A contract, whether it be by specialty or not, is either joint, or it is seve- 2dly. With ral; or parties may bind themselves jointly and severally. It would be a to the pursuit foreign to the object of this Treatise, to detail the various instances in number of which contracts shall be considered to entail upon the parties a joint or sepa- dants, and rate responsibility (e). The rule is, that several persons contracting togeth- who must er with the same party, for one and the same act, shall be regarded as jointly and not individually or separately liable, in the absence of any express words to show that a distinct as well as entire liability was intended to fasten upon the promisers (f). This rule is more particularly obvious in the case of promises implied by law. But in the case of parties demising or granting the separate interest of each in an estate, it seems that the covenant implied by law from the word "demise," or even an express covenant by the two, without express words of severalty, shall be considered co-extensive with the interest granted, and therefore shall be several where a several interest is granted, and joint, if a joint estate be granted (g). tract. First, Where there are several parties, if their contract be joint they must Joint 'conall be made defendants (h); although they subsequently arrange amongst themselves that one only of them shall perform the contract (i). And a partner who retires *from a firm is liable for the old debt, although the debt be [*48] carried by the consent of the creditor to the account of the remaining partners, and he take their bill of exchange; there being no actual satisfaction or release of the responsibility of the retiring partner (k). When an insurance has been made for the benefit of several, a jury may infer a joint contract to pay the broker (1). Where it appears from an instrument, that a promise by two contractors is intended to be joint, it may be treated as such, although the promise be in terms several only (m). A contract made by two partners to pay a sum of money to a third person equally, out of their own private funds, is a joint contract, and they should be (c) 7 B. & C. 419. (d) 5 B. & C. 170. (e) Sce Bac. Ab. Obligations; 1 B. & C. 682; Platt on Cov. 115. Persons may be jointly liable, as partners, either as having expressly contracted, or by holding themselves out to the world as such, or by a participation in the loss or profit, 16 East, 174; Dougl. 373; 2 H. Bl. 246, 247. If several persons dine together at a tavern, they are prima facie jointly liable for the whole bill, and not merely each for his own share; but each of the officers of a regimental mess is only separately liable for his own share, 3 Campb. 51, 53, 168; 2 Campb. 640. As to who are partners in general, see 3 Chit. Com. Law, 231. As to joint (f) Freem. 218; 7 Mod. 154; S. C. in (h) 1 Saund. 153, n. 1; 291 b. note 4. (4) 2 Bing. 156; and as to where two 691. (m) Lee v. Nixon, 3 Nev. & Man. 441. II. DEFEN- jointly sued upon it (n)(82); but if A. lease for years to B. and C., rendering DANTS. rent, and C. assign his moiety to D., A. may sue B. and D. jointly or several1. Who ly, at his election, for rent in arrear (o). And where two several tenants of a legally 'ia ble. farm agreed with a succeeding tenant to refer certain matters in difference Partners, respecting the farm to arbitration, and jointly and severally promised to per&c. suing each other. form the award, and the arbitrators awarded that each of the two should pay a certain sum of money to the third, it was decided that they were liable to be sued jointly for the sums awarded to be paid by each; because, by the terms of the agreement they had promised jointly as well as severally, which made each of them liable for the act of the other (p). Parceners should, before partition, be jointly sued, though they be entitled to the estate by different descents (q). [*49] Joint contractors must all be sued, although one has become bankrupt, and obtained his certificate, for if not sued, the others may plead in abatement (r). In the case of a joint contract, if one of the parties cannot be arrested or served with process, and a plea in abatement be apprehended, the only safe course is to proceed to outlawry against him (83); and even then, if after outlawry and interlocutory judgment against the defendant who was served with process, he die, no proceedings at law against his executors are sustainable, the debt still continuing to be joint (s). It seems that mere dormant partners (t), and nominal partners *having no interest (u) need not necessarily be joined as defendants; more especially if the right or interest of the plaintiff might otherwise be varied or affected. And in the case of infants, or married women (x), contracting jointly with other persons competent to enter into agreements, it is a ground of nonsuit to sue them with the persons who are legally responsible. Their names should be omitted, and if the defendant plead the nonjoinder in abatement, the plaintiff may reply the infancy or coverture (y). If one or more of several (n) 1 Hen. Bla. 236. (0) Palm. 283; 2 Vin. Ab. 66, 67; 2 Saund. 182, note I ; Cro, Jac. 411. (p) 7 T, R. 352; 2 Saund. 61 h. note 2, (4) Vin. Ab. Actions, Joinder, D. d, Parceners, Rep. temp. Hardw. 398, 399, (r) 2 M. & Sel. 23, 444; 6 Taunt. 178; 4 (8) 1 M. & Sel. 242, sed quære, 475; 1 M. & M. 89; 1 D. & R. 584; 4 Id. 240, 243; 10 B. & C. 128, 288; Demantort v. Saunders, 1 Bar. & Adol. 398, overrules 5 Taunt. 609. As to a dormant partner suing, see ante, 13, 14; and 10 B. & C. 20. (u) 2 Campb. 302; 14 East, 210; 1 Stark. 25; 1 Marsh. 246, See as to plaintiffs, 10 B. & C. 20, and ante, 13. (x) 3 Esp. Rep. 76; 5 Id. 47; 4 Taunt. 468; 1 Wils. 89. (y) Id.; but see 3 Taunt. 307. (82) A covenant in a lease to two persons, as tenants in common, that the lessees shall pay the rent, is a joint covenant, notwithstanding their several interests. Phillips v. Bonsall, survivor, &c., 2 Binn. 138, If a partner purchase goods for the partnership account, but on his individual credit, he may be sued alone. Sylvester and another v. Smith, 9 Mass. Rep. 119. And if a partner raise money by way of discount, on a bill drawn by himself individually, the lender cannot resort to the partnership neither in an action on the bill, or on an implied assumpsit, although the proceeds of the bill were carried to the partnership account. Emly and others v. Lye, 15 East's Rep. 7. But where a partner raises money for the use of the partnership by drawing bills of exchange upon the firm, although the partners are not jointly liable upon an unaccepted bill, yet they are jointly liable as for money lent, or money had and received. Denton and others v. Rodie and another, 3 Campb. 493. If one partner make a warranty in a sale, an action may be sustained against him, without joining his co-partner. Clark v. Holmes, 3 Johns. Rep. 148. (83) In Pennsylvania, there is no outlawry in civil cases-the return of non est inventus has, in pleading, the same effect. Dilman v. Shultz, 5 Serg. & Rawle, 35. } DANTS. partners originally jointly liable has taken the case out of the statute of limita- II. Defentions as to himself only, by promising or acknowledging the debt, then the action should be only against him, and not against him and his co-partner, who 2. Who has been discharged from liability (z). should be joined or In the case of defendants, if one of the parties originally bound be dead, it omitted. is not necessary to notice him in the declaration, and the survivors need not be declared against as such, but may be sued as if they alone were the parties primarily liable (a). contract. Secondly, Where the covenant or promise is so framed that it does not con- Several fer upon the plaintiff a remedy against the contractors jointly, but each is only separately responsible for his own act, it is essential to sue them distinctly; but where it appears upon an instrument that a promise by two contractors was intended to be joint, it may be treated as such, although the promise be in terms several only (b). Thirdly, When the contract is several as well as joint, the plaintiff is at Joint and several liberty to proceed against the parties jointly, or each separately, though their contract, interest be joint (c). But if there be more than two parties to a joint and several contract, as where three obligors are jointly and severally bound, the plaintiff must either sue them all jointly or each of them separately (d) (84) ; though if two only be improperly sued, the objection should be taken by plea in abatement, or by writ of error if the defect appear on the record, and it is not a ground of nonsuit (e). Where parties are sued separately, on a joint and several engagement to do a certain act, the *breach may be assigned in [*50] B. 65. And where separate actions were (d) 3 T. R. 783; Bac. Ab. Obligation, D. (e) 1 Saund. 291 e.; 2 Taunt. 254. (84) Vide Cutter v. Whittemore, 16 Mass. R. 446. Carter v. Carter, 2 Day, 442. On a note given by several for a sum to be paid in the following proportions, viz. half by A., one sixth by B., one sixth by E., &c. several actions must be brought against each, and not a joint action against all. M'Bean v. Todd, 2 Bibb's R. 320. And if a joint and several promissory note is made by one of the members of a firm in the partnership name, and by another in his individual character, a suit may be maintained against the firm, without joining the other maker of the note; it being the note of the firm, and not of the individuals composing it, so far as the remedy to enforce payment was concerned. Partners cannot be individually sued for a partnership debt. Each partner is bound for the whole until the debt is paid; but payment can be enforced only by a joint action against all. Their responsibilities are joint only, and not joint and several, so as to subject each to a separate action. Robertson v. Smith, 18 J. R. 459. Henry Van Tine v. Črane et al., 1 Wend. R. 524. A contract under seal, purporting by its terms to be between two firms in their partnership names, and the partnership name of one firm is subscribed to the contract, and that of the other firm is subscribed to a counterpart thereof, held that an action could be maintained against the member of the firm individually, who subscribed the name of his firm, unless he shows his authority to bind his co-partners in that manner. And such action may be sued in the joint names of the partners with whom the contract is made, although but one of the firm signed the counterpart, in the name of the firm; and although no authority be shown authorizing him to sign the name of his firm to a sealed contract. Gates v. Graham et al., 12 Wend. R. 53. DANTS. 2. Who should be omitted. II. DEPEN- both (ƒ); and a recovery (85), and execution against the body of one, producing no actual satisfaction, will be no bar to an action against the other (k). And when the contract is joint and several, and the debt or demand considerjoin d or able, it is most advisable to proceed separately, for if all the parties be joined, and one of them die after judgment, and before execution, the remedy at law against the personal estate or assets of the deceased is determined (1) (86); and in the case of the death of a surety, even a court of equity will not in all cases relieve (m); whereas, if the plaintiff proceed separately, the executor of the deceased, as well as the survivor, continue severally liable at law (n). In general, when a contract was joint and several, if the debt be considerable, it is most advisable to proceed separately, so that the creditor may thereby retain his legal remedies against each in case of death of one or more of the parties. Mis-joinder. It has been already observed, that at law, as well as in equity, the courts will not take cognizance of distinct and separate claims or liabilities of different persons in one suit, though standing in the same relative situations (o). And, therefore, in an action ex contractu against several, it (ƒ) 1 Stra. 553; 2 Burr. 1197. (1) Com. Dig. Pleader, 3 L. 3, Action, K. (4); Tidd, 9th edit. 1121; 1 Bing. 138. (n) 2 Burr. 1190. (o) Ante, 9 to 16; 1 East, 226, 227; 1 Mad. 88, 89. (85) Minor v. Mech. Bank, 1 Peters' Sup. Ct. Rep. 46. Vide Meredith's Administratrix v. Duval 1 Mun. 79. Leftwich and others v. Berkeley, 1 Hen. & Mun. 61. But by the New York statute for the amendment of the law, sess. 36, c. 56. s. 14. 1 R. L. 521, it is enacted that all or any part of the obligors in a joint and several or several bond or recognizance may be joined in one action, and if the whole amount due shall not be levied in such suit, a further action may be brought against the residue of the obligors jointly or severally; but no more than the debt and damages due, with costs of suit, can be levied : the plaintiff may at any stage consolidate the suits; and where more than one suit is depending at the same time, on one bond, recognizance, promissory note or bill of exchange, he can recover costs in only one snit, except the costs of writs issued into several counties, against defendants residing in different counties. See as to actions against joint debtors, 2 Rev. Laws, 277. In Pennsylvania, by the provisions of the Act of April 6th, 1830, entitled "an Act for the furtherance of justice between obligors and obligees, and other creditors and debtors," it is provided, "that in all suits now perding, or hereafter brought in any court of record in this commonwealth, against joint and several obligors, co-partners, promissors or the indorsers of promissory notes, in which the writ or process has not been, or may not be served on all the defendants, and judgment may be obtained against those served with process, such writ, process, or judgment shall not be a bar to recovery in another suit against the defendant or defendants not served with process, and that from and after the passing of this act, in all cases of amicable confession of judgment by one or more of several obligors, co-partners, or promissors, or the indorsers of promissory notes, such judgment shall not be a bar to recovery in such suit or suits as may have to be brought against those who refuse to confess judgment." Purd. Dig. 481.} (86) { Cɔmm. v. Miller's Adm., 8 Serg. & Rawle, 452. } Vide Foster . Hooper, 2 Mass. Rep. 572. But by a statute passed 26th February, 1800, his assets are rendered liable in the hands of his executors or administrators. 3 Laws Mass. 69. And see the statute of the State of New York, cited above, note (85,) which authorizes the plaintiff to prosecute the action against all or any of the obligors to judgment and execution against the defendants, and against their joint or separate property, and in an action against the residue of the obligors, to prosecute the same to judgment and execution against the said residue, and against their joint or separate property. Judgment was recovered against A., one of two joint makers of a promissory note: the plaintiff brought an action afterwards against A. and B. the other maker, on the same note, and B. pleaded separately the recovery against A.; the plea was held bad. Sheehy r. Mandeville and Jameson, 6 Cranch, 253. See, however, the remarks of Ch. Justice SPENCER upon the case of Sheehy v. Mandeville, 18 Johns. Rep. 482. } |