DANTS. [*51] must appear on the face of the pleadings that their contract was joint (87), 11. DEFENand that fact must also be proved on the trial. If too many persons be made defendants, and the objection appear on the pleadings, either of the defendants 2. Who should be may demur, move in arrest of judgment, or support a writ of error (p); and joined or even if the objection do not appear upon the pleadings, the plaintiff may be omitted. nonsuited upon the trial, if he fail in proving a joint contract (q) (88). Although in actions for torts one defendant may be found guilty, and the other acquitted, yet in actions for the breach of a contract, whether it be framed in assumpsit, covenant, debt, or case, a verdict or judgment cannot in general be given in a joint action against one defendant without the other (r). In an action of assumpsit *against three persons, two only of whom were liable to be sued, the party not liable, together with one of those who was liable, suffered judgment by default, and the other party pleaded the general issue, and a verdict was found for the defendant who pleaded, on the ground that the plaintiff having declared as upon a promise by three defendants, to entitle himself to recover, he should have proved a promise, either express or implied, binding upon all the three (s); and where the plaintiff declared on a joint and several promissory note, against all the makers jointly, and one of them, by his plea, admitted his hand-writing to the note, but the other defendants pleaded non-assumpsit, the plaintiff was nonsuited, for not proving the hand-writing of the defendant, who by his plea had so admitted it (t). And though a contract be proved to have been in fact made by all the defendants, yet if in point of law it was not obligatory on one of the defendants, either on the ground of infancy or coverture, at the time it was entered into, the plaintiff will be nonsuited, and in this instance he cannot avoid the objection by entering a nolle prosequi as to the infant or feme covert (u) (89); but must discontinue and commence a fresh action, omitting such parties; in (p) 7 T. R. 352. (q) 1 East, 52; 1 Lev. 63; 1 Esp. Rep. 363; Bul. N. P. 129; 1 H. Bla. 37; 2 Ñ. R. 365, 454; 12 East, 94, 454; 2 Taunt. 49; 2 Campb. 308; 6 Car. & P. 545, and the Court will not permit the striking out the names of one or more defendants to cure the defect, id. ibid. The same rule prevails under a joint commission of bankruptcy. (r) 1 Lev. 63; 2 New Rep. 365, 454; (s) East, 52; 3 T. R. 662; 1 Lev. 63. (87) Walcott v. Canfield, 3 Conn. Rep. 198. (88) Manahan v. Gibbons et al., 19 Johns. Rep. 109. Vide Jackson d. Haines and others v. Woods and others, 5 Johns. Rep. 280, 281. Tom v. Goodrich, 2 Johns. Rep. 213. Livingston's Ex'rs v. Tremper and others, 11 Johns. Rep. 101. Elmendorph v. Tappan and others, 5 Johns. Rep. 176. Burnham v. Webster, 5 Mass. Rep. 270. (89) Vide contra Hartness and another v. Thompson and others, 5 Johns. Rep. 160. Woodward v. Newhall, 1 Pick. Rep. 500. See 20 Johns. 160, 161. A plea in abatement that the defendant made the promise jointly with another, is supported by evidence that the promise was made by the defendant'jointly with an infant. Gibbs v. Merrill, 3 Taunt. 307. Burgess v. Merrill, 4 Taunt. 468, 469. In an action in a joint and several bond, some of the parties' sureties severed in their pleadings from their principal, and a trial and verdict were had against them; afterwards the principal was called upon to plead, and did so-judgment was then entered up against the sureties, and a nolle prosequi as to the principal-to this judgment, or the proceedings, no exception was taken in the court below, nor was a new trial asked by the sureties, but a writ of error was taken. The Supreme Court of the United States affirmed the judgment; holding that there was no decision exactly in point to such a case; that there was no distinction between the entry of a nolle prosequi before and after judgment as applicable to such a case; and that the decisions of the Courts of the United States upon this proceeding, have been on the ground that the question is matter of practice and convenience. Minor v. Mech. Bank, 1 Peters, Sup. Ct. Rep. 46. } DANTS. 2. Who should be joined or omitted. 11. DEFEN- which case, should the defendants plead the non-joinder of the infant or feme covert in abatement, the plaintiff may reply the infancy or coverture (x). But when one of the defendants is discharged from liability by matter subsequent to the making of the contract, and which operates only to protect him individually, leaving the contract in other respects in full force, as by bankruptcy and certificate, or by the order of the Insolvent Court, the failure on the trial as to him on that ground does not preclude the plaintiff from recovering against the other parties, or a nolle prosequi as to him may be entered, upon his plea of his personal discharge (y). And by virtue of the late statute (z), the success of one defendant upon the Statute of limitations *shall not defeat the action against another defendant who has admitted the claim within six years. In debt on a penal statute at the suit of a common informer, or of the party aggrieved, for an offence which may be committed by several jointly, the plaintiff will succeed if he prove either of the defendants to be liable; for in this case the action, though in form ex contractu, is founded upon a tort (a) (91). So against executors, though the plaintiff may fail as to one, on the plea of plene administravit, he may recover against the other, and the defendant who is acquitted is not even entitled to costs (b). [ *52] As the consequences of the joinder of too many defendants, in an action founded on a contract (c), are in general so important, it is advisable, in cases where it is doubtful how many parties are liable, to proceed only against those defendants who are certainly liable, in which case we shall see the non-joinder can only be taken advantage of by a plea in abatement (d) (92). Non-Joinder. With respect to the mode of taking advantage of the omission of a party who ought to be made a co-defendant, there is a material distinction between this case, and that of co-plaintiffs. We have seen that if a person who ought to join as plaintiff be omitted, and the objection appear upon the pleadings, the defendant may demur, move in arrest of judgment, or bring a writ of error; or if the objection do not appear on the pleadings, the plaintiff, except in the case of co-executors or co-administrators, will be nonsuited (e). But in the case of defendants, if a party be omitted, (x) 4 Taunt. 468, 470; 3 Id. 307; 14 East, 214; 3 Esp. Rep. 76; Vin. Ab. Actions, Joinder, D. d. pl. 8; 5 Esp. Rep. 47. (y) 1 Wils. 89; 1 Saund. 207 a. n. 2; 3 Esp. Rep. 77; 2 M. & Sel. 23, 444. If the general issue also be pleaded by the defendant, who sets up his bankruptcy or insolvency, a nolle prosequi cannot be entered. For the entry of a nolle prosequi against one defendant, who pleads the general issue in an action ex contractu against several, discharges all, see Tidd, 9th edit. 682, 896. (z) 9 Geo. 4, c. 14, s. 1. (a) Carth. 361; 2 East, 569; 1 New Rep. 245; 3 East, 62. (b) Tidd's Prac. 9th edit. 986; 1 Saund. 207 a, b. note. (c) According to the case of Govett v. Radnidge, 3 East, 62, when the plaintiff declares in case for the breach of a contract, (e) Ante, 9, 10, 14. (91) { Whitbeck v. Cook et ux., 15 Johns. Rep. 483. Beibman v. Vandenlia, 2 Rawlie, 334. (92) Vide Burnham v. Webster, 5 Mass, Rep. 270. whether liable to be jointly sued upon a personal contract or as pernor of the 11. DEFENprofits of a real estate, as in *debt for a rent charge (ƒ), or on one of the assignees of a term (g), the objection can only be taken by plea in abatement, 2. Who DANTS. should be verified by affidavit (h); and the statute 3 & 4 W. 4, ch. 42, sect. 8, re- joined or quires the affidavit to state the residence in England of the omitted defendant, omitted. and if this be omitted, the defendant will be chargeable with the whole debt, and it cannot be objected at the trial upon the general issue as a variance, that a bill or note stated in the declaration to have been made by the defendant, was in fact made by him and others (i). If, however, it expressly appear on the face of the declaration, or some other pleading of the plaintiff, that the party omitted is still living, as well as that he jointly contracted; in that case the defendant may demur (93) or move in arrest of judgment, or sustain a writ of error (k). There may, however, be this objection in the case of a joint contract, to the non-joinder of one or more of the several parties liable, that if judgment be obtained against one, and in a separate action against him on such contract, the plaintiff may have difficulty in afterwards proceeding against the parties omitted (). If the defendant plead in abatement the nonjoinder of a party, and it turns out there are other joint-contractors not named in the plea, the defendant will not succeed thereon (m). (f) 1 Saund. 284, n. 4. (g) 5 B. & C. 479. 2 (h) Whelpdale's case, 5 Co. 119 a; Taunt. 254; 1 Saund. 154, n. 1, 291 b. n. 4, &c.; 5 T. R. 651; 1 East, 20; 4 T. R. 725; 2 Bla. Rep. 947; 3 Camp. 50. (i) I B. & Ald. 224; Gow, R. 161. (k) 1 Saund. 291 b. &c. n. 4, 154, n. 1; 1 B. & P. 73; 7 T. R. 596, 597; 2 Taunt. 254. Suing only two of the inhabitants of the hundred under the black act is fatal in arrest of judgment, 2 D. & R. 439. In general a person is presumed to be living, until it be proved that he is dead, unless seven years have elapsed since he was heard of, 2 East, 313; 6 East, 85; 1 Saund. 235 a, (1) Com. Dig. Action, K. 4, L. 4; 6 Co. (93) { Whitaker v. Young, 2 Cowen's Reports, 572.} In the second edition, the passage in the text stands thus: "There is, however, this objection in the case of a joint contract to the non-joinder of one or more of the several parties liable, that if judgment be ob tained against one, in a separate action against him on such contract, the plaintiff cannot afterwards proceed against the parties omitted, and consequently loses their security ;”— upon which it has been well remarked, by Chief Justice SPENCER, (18 Johns. Rep. 478.) "that by reference to the cases cited by Chitty, it will be found, that they were actions in tort; and even in those actions which are, in their nature, joint and several, it has been held, that where the plaintiff proceeded to judgment against one, the others might plead this in bar. (Cro. Jac. 73. Yelv. 67. Com. Dig. Action, K. 4, 6 Co. Rep. 75.) These cases come under the review of this court in Livingston v. Bishop, (1 Johns. Rep. 291.) and it was decided, that a judgment alone would be no bar, without satisfaction. In Wilkes v. Jackson, (2 Hen. & Munf. 358, 361.) it was decided that a judgment for damages, in a separate action against one of several joint trespasses, is a bar to an action against the rest. There is, however, a wide difference between a judgment against one of several tort feasors, and one of several joint debtors. In the latter case whatever extinguishes the debt as to one, merges it as to all." See Robertson v. Smith, 18 Johns. Rep. 459. Willings et al. v. Consequa, 1 Peters' Rep. 301. Penny v. Martin, 4 Johns. Cha. Rep. 566. Smith v. Black, 9 Serg, & Rawle, 143. Downey v. Farmers' Bank, 13 Serg. & Rawle, 288. Ward v. Johnson, 13 Mass. Rep. 148. See also Williams v. M'Fall, 2 Serg, & Rawle, 280. Reed v. Garvin's Ex'rs, 7 Serg. & Rawle, 354. The supreme court of Massachusetts, however, have recently decided, (two judges of the five composing the court, dissenting,) that after a judgment in trespass de bonis asportatis against a deputy sheriff, and an execution levied on his body, but not satisfied, no action lies against the sheriff. Campbell v. Phelps, 1 Pick. Rep. 62. II. DEFEN- assign In general, in the case of a mere personal contract, the action for the breach of it cannot be brought against a person to whom the contracting party 3dly. In has assigned his interest, and the original party alone can be sued: thus if one the case of demise cattle *or goods, and the lessee covenant for himself and his ment of assigns, at the end of the term to deliver such cattle or goods, and the lessee change of assign the cattle, &c., this covenant will not bind the assignee, for it is merely credit, and a thing in action in the personalty, and wants such privity as exists between of cove- the lessor and lessee of real property in respect of the reversion (»); and if two ning with parties dissolve their partnership, and one of them covenant with the other that the land, he will pay all the debts, a creditor must nevertheless sue both (0). interest or nants run &c. [*54] There may, however, in some cases, be a change of credit, by agreement between the parties, so as to transfer the liability from the original contracting party to another, or to one only of the original parties (p): thus where the plaintiffs were creditors of T. and the defendants were debtors to T., and by the express consent of all parties an arrangement was made, that the defendant should pay to plaintiffs the debt due from them to T.; it was held, that the plaintiffs were entitled to recover (q). But unless it was agreed that T. should be discharged from all liability, it seems that no such action could be supported (r). The general rule of the law is, that a debt cannot be assigned, The exception to that rule is, that where there is a defined and ascertained debt due from A. to B. and a debt to the same or a larger amount due from C. to A., and the three agree that C. shall be B.'s debtor instead of A., and C. promises to pay B., the latter may maintain an action against C. But in such action it is incumbent on the plaintiff to show, that at the time when C. promised to pay B. there was an ascertained debt due from A. to B. (s). So in the case of a tenancy from year to year, if the landlord accept another person as tenant, in the room of the former tenant, without any surrender in writing, such acceptance will be a dispensation of any notice to quit, and the original tenant will be [*55] discharged (t). So if one take the security of the agent of the *principal, with whom he dealt, unknown to the principal, and give the agent a receipt as for the money due from the principal, in consequence of which the principal deals differently with his agent on the faith of such receipt, the principal is discharged, although the security fail; but if the principal were not prejudiced he would not be discharged (u). Where one of three joint covenantors gave a bill of exchange as a collateral security, not expressly accepted in satisfaction of the debt, the judgment recovered on the bill was decided to be no bar to an action of covenant against the three (x); and the creditor of a firm does not (n) 3 Wils. 27; 4 T. R. 730, 726; chose in action not assignable at law, see ante, 17, 18. (o) See ante, 12, 13. (p) 1 New Rep. 124, 131; 4 Esp. Rep. 91, 92; 5 Esp. Rep. 122; 8T. R. 451; 3 East, 147; 2 Campb. 99; 12 East, 421; 2 Taunt. 49; 13 East, 7; 4 Taunt. 58. See instances of a new firm adopting a debt of an old firm, and thereby becoming liable; 1 Mont. Bank. Law, 619, 620; 4 Taunt. 673; 2 B. & Ald. 39; 2 B. & C. 72. (q) 5 B. & Ald. 228; 1 Hen. Bla. 339; ante, 18. (r) 3 B. & C. 855; 4 B. & C. 166; 5 B. & Ald. 228; 8 B. & Ć, 395, 396. (s) 8 B. & C. 395. (t) 2 Esp. Rep. 505; 1 Campb. 318; 2 B. & Ald. 119; but see 2 Campb. 103; 5 Taunt. 518. See cases as to this point 2 Stark. Rep. 236; 4 Bar. & Cres. 922, 933; 3 Bing. 462. (u) 3 East, 147; 8 T. R. 451; 9 B. & C. 449; see observations of Lord Hardwick, Ambl. 271, 272. (x) 3 East, 251; 8 T. R. 451; 2 B. & A. 210; 3 B. & A. 611. DANTS. discharge a retiring partner by agreeing to carry the debt to the account of 11. DEFENthe remaining partners, and by taking their bill, which is afterwards dishonored (y) (94); or unless it clearly appear that the creditor has accepted the 3. When interest, substituted credit of a new partnership instead of the liability of the old firm, and &c. assignnot merely as a continuing or additional security (z). But taking a new se- ed. curity from continuing partner may discharge the retiring one if so agreed (a). The consignor of goods may be primarily liable for the freight, but the consignee or purchaser, if he accept the goods in pursuance of the usual bill of lading, may be sued for the same, unless it be known to the master of the ship that he acted only as agent for the consignor (b). And the indorsee of a bill of lading requiring the delivery to order, on payment of freight, is liable, though he only acted as broker for the consignee (c). But where there is a charter-party under seal providing for payment of freight by the freighter, and the goods are received under an indorsed bill of lading, by which they are deliverable to the freighter or order, he or they paying freight as per charterparty, there is no implied contract on the part of the indorsee of the bill of lading to pay freight to the owner of the ship (d). Upon a covenant running with the land, which must concern real property In case of or the estate therein (e), the assignee of the lessee is liable to an action for a covenants breach of covenant after the assignment of the estate to him (h) (95), running and with real although he afterwards re-assign or assign to a third party, he continues liable property. for all breaches accruing whilst the term was legally vested in him (i), and though he have not taken possession (k). And executors or administrators of a lessee may be sued as assignees of the term if they accept the term, though if one of two executors of a lessee enter, such entry does not enure as the entry of both so as to make them jointly liable to an action for use and occupation (1). But his liability ceases when he assigns his interest, though even purposely, to (y) 5 B. & C. 196. (z) Kirwan v. Kirwan, 2 Cr. & M. 617, 627; 4 Tyr. 491, S. C. (4) Thompson v. Percival, 3 Nev. & Man. 167, citing Kirwan v. Kirwan, supra. (b) Abott, 1st edit. 229; 1 East, 507; 1 Marsh. 248; 13 East, 399; M. & S. 157; 2 M. & S. 303, 320. (c) 1 Marsh. 146, 250; 1 M. & S. 157. (d) 2 M. & S. 303; but see 3 M. & S. 218; 3 Campb. 545. (e) 3 Wils. 29; 2 H. Bla. 133; 10 East, 138, 139; 2 Marsh. 1, 4. As to what is a covenant running with the land, see 5 B. & A. 1; 4 B. & A. 266; 1 B. & C. 410; 3 Moore, 45; 2 Chit. Rep. 482, 608; ante, 19. (h) 32 H. 8, c. 34; Bac. Ab. Covenant, E. 34; 3 Wils. 25; 2 Saund. 304, n. 12; Platt on Cov. 489. As to the liability of the assignee of part of the premises, 5 B. & C. 479, 484; 8 D. & R. 264, S. C. The lead- (i) Harley v. King, 1 Gale R. 100; 2 (k) Woodfall, L. & T. 7th edit. 113; 7 T. R. 312; 2 Saund. 182; 1 Salk. 198; 1 Lord Raym. 322; 1 B. & B. 238; 3 Moore, 500, S. C. acc.; Dougl. 438, cont. () Nation v. Tozer and another, 1 Crom. M. & Ros. 172. (94) See Smith et al. v. Rogers et al., 17 Johns. Rep. 340. But the bond, or obligation under seal, of one of the partners is an extinguishment of a simple contract debt from the partnership to the obligee. Clement v. Brush, 3 Johns. Cas. 180. Tom v. Goodrich and others, 2 Johns. Rep. 213. The principle of law is, that a security of a higher nature extinguishes inferior securities, but not securities of an equal degree. Andrews v. Smith, 9 Wend. R. 53. (95) Vide Polland v. Shaeffer, 1 Dall. 210. |