visors. People vs. Supervisors, 28 Cal., p. 431. But the account or claim, of whatever nature, must have. been first presented to the Supervisors, and rejected before any action thereon can be maintained against the county.-McCann vs. Sierra County, 7 Cal., p. 121. The agents of the county and its officers may be joined as defendants in certain cases.-McCann vs. Sierra Co., 7 Cal., p. 121. At least a majority of the members of a Board of Supervisors should be made defendants in an action brought to enjoin the Board from purchasing property for the use of the county.-Trinity County vs. McCammon et als., 25 Cal., p. 119; see, further, Political Code, Sec. 4000.

32. JOINDER OF PARTIES WHO HAVE NO JOINT INTEREST.-It seems that the joinder of two persons as co-defendants, who have no joint interest in the subject matter of the suit, and are under no joint liability,' will, unless the mistake be corrected in the Court below, be error.-Sterling vs. Hanson, 1 Cal., p. 478.

33. ACCOMMODATION GRANTEES AND FICTITIOUS DEPOSITARIES OF TITLE-WHEN MAY BE MADE PARTIES.-It was shown that some of the parties were mere accommodation grantees and fictitious depositaries of title; but it was held that they have a right to be heard at law in their own defense, before Courts of chancery can pronounce definitely on their claims, however false they may appear, inter alias.-Knowles vs. Inches, 12 Cal., p. 212.

34. ACTION AGAINST ONE ATTACHING CREDITOR BY A SUBSEQUENT ATTACHING CREDITOR.-Property was seized under two attachments, and was claimed by a third party. Both attaching creditors indemnified the Sheriff, who proceeded to sell it, and paid the proceeds to the first attaching creditor, the amount not equaling his judgment; and afterwards the party claiming the property obtained judgment against the Sheriff for the value of the property. Held: that the recourse must be had against the first attaching creditor, for whose benefit the property was sold. In such a case the attaching creditors do not stand in the position of joint trespassers, the seizure of the second being subject to the first.-Davidson vs. Dallas, 8 Cal., p. 227.

35. ACTIONS AGAINST CONTRACTORS BY THIRD PARTIES FOR DAMAGES TO PROPERTY OF SUCH PARTIES.

Where parties employed architects, reputed to be skilled in their profession, to construct at a designated point on a creek a dam, or embankment, of certain specific dimensions, capable of resisting all floods and

Amended 1893-410 Amended

freshets of the stream for the period of two years, and
to deliver it completed by a given time, and before the
embankment was completed it was broken by a sudden
freshet, and a large body of water, confined by it,
rushed down the channel of the stream, carrying
away and destroying in its course the store of plaintiffs,
with their stock of merchandise. The employers
exercised no supervision, gave no directions, furnished
no materials, nor had they accepted the work. Plain-
tiffs brought suit to recover the damage sustained by
them against the employers and contractors. Held:
that the latter alone were liable. The relation of the
parties is that of independent contractors. The rela-
tion of master and servant, or superior and subordinate,
did not exist between them, and therefore the doctrine
respondeat superior does not apply to the case.-Bos-
well vs. Laird, 8 Cal., p. 469.

36. ACTIONS ON CONTRACTS.-In an action on a con-
tract only the contractors therein can be made parties.
See Barber vs. Cazalis, 30 Cal., p. 92.

37. ACTIONS AGAINST PUBLIC OFFICERS.--A public officer, who stands in the relation of agent of the Government, or of the public, is not personally liable upon contracts made by him as such officer, and within the scope of his legitimate duties; but this reason does not apply when neither the Government nor the public in any way can be considered or held responsible for a contract made by a person, although a public officer.--Dwinelle vs. Henriquez, 1 Cal., p. 392.

38. ACTION FOR MALICIOUS PROSECUTION.-Dreux vs. Dornee, 18 Cal., p. 83.

defendant

to

380. In an action brought by a person out of pos- Parties session of real property to determine an adverse claim in an action of an interest or estate therein, the person making conflicting such adverse claim and all persons in possession must be joined as defendants.

claims to real

property.

holding

a common

381. Persons claiming an interest in lands under Parties a common source of title may unite as plaintiffs in an title under action against any person claiming an adverse interest sourc therein, for the purpose of determining such adverse may join.

claim,

or of establishing such common source of title,

31-VOL. I.

1873-4.

or of declaring the same to be held in trust, or for removing a cloud thereon.

NOTE.-Stats. 1868, p. 15.

1. ACTIONS RESPECTING COMMON PROPERTY.-ACtions for the diversion of the waters of ditches are in the nature of actions for the abatement of nuisance, and may be maintained by tenants in common in a joint action.-De Johnson vs. Sepulbeda, 5 Cal., p. 151; Parke vs. Kilham, 8 Cal., p. 79. Tenants in common in a mine may sue jointly to recover possession of all of their several undivided interests.-Golber vs. Fett, 30 Cal., p. 481. And the executor of a tenant in common can be united with the surviving co-tenants.Touchard vs. Keyes, 21 Cal., p. 202. A tenant in common, employed as agent, may sue his co-tenant for the services rendered in respect to the land.-Thompson vs. Salmon, 18 Cal., p. 632. One of several tenants in common has a right to sue alone for his moiety.-Covillaud vs. Tanner, 7 Cal., p. 38.

2. ACTION OF EJECTMENT WHERE THERE ARE SEVERAL CO-TENANTS.-In this State, two or more of several co-tenants cannot be joined as parties in an action of ejectment. The rule which determines whether tenants in common should sue jointly or severally depends upon the nature of their interest in the matter or thing which is in controversy. For injuries to their common property, as trespass, quare clausum fregit, or nuisance, etc., they should all be joined; but they must sue severally in real actions, generally, as they all have separate titles.-See Coke's Litt., p. 197; De Johnson vs. Sepulbeda, 5 Cal., p. 151.

382. (§ 14.) Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the Court, one or more may sue or defend for the benefit of all.

NOTE.-1. JOINT ASSOCIATIONS COMPOSED OF MANY INDIVIDUALS.-In cases of joint associations which consist of a great many individuals, and when it would be

very inconvenient or almost impossible to join them, one or more may sue or defend for all.-See Van Schmidt vs. Huntington, 1 Cal., p. 55; Gorman vs. Russell, 14 Cal., p. 531.

2. ACTION BY STOCKHOLDER AGAINST CORPORATION AND CERTAIN TRUSTEES FOR NEGLIGENCE ON PART OF TRUSTEES.-An action was brought to compel an account and obtain a settlement of the affairs of a corporation. The plaintiff was a stockholder, and the corporation and four of the Trustees were made defendants. It was alleged that these Trustees were the owners of stock sufficient to enable them to control the business of the company, and various acts of fraud and mismanagement were charged against them in the complaint. It was decided that a stockholder could maintain an action in equity for an account (Aug. & Ames on Corp., Sec. 312; Robinson vs. Smith, 3 Paige Ch. R., p. 222), and that where no objection was interposed that all the stockholders were not made parties, the Trustees and corporation could be sued alone and made the only parties. The Trustees will be compelled to make good any loss occasioned by their negligence or improper conduct.-See Neall vs. Hill, 16 Cal., p. 151.

3. DECREE IN ACTION BROUGHT BY ONE FOR HIMSELF AND ON BEHALF OF OTHERS.--Where an action is brought by one of several persons, claiming title from a common source, on his own behalf and in behalf of all others interested in the same manner as himself, to set aside a deed executed to others by the same grantor under whom plaintiff claims, on the ground of fraud, the parties named in the complaint for whose benefit the action is brought, are entitled to the benefit of the decree declaring the deed fraudulent.--Hurlbutt vs. Butenop, 27 Cal., p. 50.

4. PARTNER SUING FOR INJURY TO PARTNERSHIP PROPERTY AND MAKING COPARTNER A Defendant. When one partner sues for an injury to the partnership property, and makes his co-partner a defendant for want of his consent to join as plaintiff, the recovery must be entire for the whole injury. The law will not tolerate a division of a joint right of action into several actions. The whole cause of action must be determined in one, and thus avoid a multiplicity of suits. In such a case the partner recovering is liable to account to his co-partner defendant, and the latter is interested immediately in the event of the suit.-Nightingale vs. Scannell, 6 Cal., p. 509. But this case did not decide that such a non-joinder of the plaintiffs

Plaintiff may sue in one action

the differ

to commer

would be permitted under the Code. The question was not raised.-Id.

5. SECTION APPLIES ONLY TO SUITS IN EQUITY.It was held that this section was intended to apply to suits in equity and not to actions at law.-Andrews vs. Mokelumne Hill Co., 7 Cal., p. 333.

383. (§ 15.) Persons severally liable upon the same obligation or instrument, including the parties ent parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff.

cial paper.

NOTE.-1. PLAINTIFF MAY ELECT WHICH ONE OR

WHAT NUMBER OF MANY PERSONS SEVERALLY LIABLE

HE WILL SUE.-This section changes the common law rule, that one or all, and not any intermediate number, may be sued. Under this section a plaintiff may, at his election, sue one or more, or all the persons severally liable, upon the same obligation or instrument.-People vs. Love, 25 Cal., p. 526; Stearns vs. Aguirre, 6 Cal., p. 183; see, also, People vs. Frisbie, 18 Cal., p. 402; Lewis vs. Clarkin, 18 Cal., p. 399.

2. JUDGMENT MAY BE FOR OR AGAINST ONE OF SEVERAL DEFENDANTS, AND OTHERWISE AS TO THE OTHER DEFENDANTS.-S .-See Secs. 578, 579, post.Lewis vs. Clarkin, 18 Cal., p. 399; People vs. Frisbie, 18 Cal., p. 402.

3. INDORSERS-WHEN JOINTLY AND NOT SEVERALLY LIABLE.-A note was payable to A., and previously to its delivery to the payee was indorsed by B. and C. These parties were accommodation indorsers. An indorsement was made by two persons upon an agreement with each other that they would each become surety, if the other would; or, in other words, that they would become sureties together. It was decided that the indorsers we were guarantors (see facts), and were jointly, and not severally, liable to payee, etc.—Brady vs. Reynolds, 13 Cal., p. 31.

4. THERE MUST BE EXPRESS WORDS TO CREATE A SEVERAL LIABILITY.-See Chitty on Contracts, p. 96; 1 Chitty's Plead., p. 41; Brady vs. Reynolds, 13 Cal., p. 32.

5. JUDGMENT AGAINST ONE IS BAR TO ACTION AGAINST OTHER PARTIES ON A JOINT CONTRACT.-A judgment against one on a joint contract of several is a bar to an action against the others.-Smith vs. Black,