property which is under his control by virtue of his office. In New York, it has been determined by the Supreme Court in a very carefully considered case, the decision, however, being rested upon a construction of the Revised Statutes, and not of the code, that the general guardian may bring all actions in his own name respecting the personal property of the ward and the rents and profits of his real estate. This same power is expressly conferred upon him by the statutes of certain States. On the other hand, it is held in Kentucky that, while the guardian, who has taken a note expressly made to himself as payee for moneys belonging to the ward, may prosecute an action thereon, because the promise is given directly to him, he cannot sue in respect of his ward's property in general, since he has no estate or interest therein; such actions must be brought in the name of the infant. The statutes which provide for the appointment of guardians or committees over the property of lunatics, confirmed drunkards, and other such persons not sui juris, generally confer upon them the same powers that are given to the general guardians of infants, and a similar rule should therefore prevail in reference to their prosecution of actions. Although there is some conflict in the decided cases, yet, as these guardians or committees do not acquire any estate or interest in the property subjected to their control, but only a power of possession and management, the correct doctrine upon principle would seem to be that they cannot maintain actions concerning it in their own names, unless expressly authorized to do so by statute; other actions may be brought by them.5 1 This interpretation is given to the language of the code by the Supreme Court of Indiana in Shepherd v. Evans, 9 Ind. 260, which holds that, by virtue of the provision, the guardian is empowered to bring such actions in his own name. 2 Thomas v. Bennett, 56 Barb. 197; Seaton v. Davis, 1 N. Y. Sup. Ct. 91; and see White v. Parker, 8 Barb. 48, 52; Mebane v. Mebane, 66 N. C. 334; Biggs . Williams, 66 N. C. 427. The 488, which expressly holds that the com- SECTION SIXTH. WHO MAY BE JOINED AS PLAINTIFFS. § 183. The following are the provisions relating to the joinder of parties plaintiff in one action found in the various State codes, and it will be seen that there is an absolute identity of language in all the legislation upon this subject. "All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title." This is the important section; but the following one somewhat enlarges its scope and effect in certain cases: "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 [petition]."2 The particular statutory rules relating to married women as parties, and prescribing when wives may sue alone or when husbands must be joined, will be stated in a subsequent portion of this section. Many of these special enactments are not found in the codes of procedure, but in separate and independent legislation. § 184. The Common-law Rules. Before entering upon the interpretation of these statutory provisions, and before discussing is brought to assert the title of the lunatic §§ 378, 381; Missouri, art. 1, § 4; Wisconto real and personal property, it must be sin, ch. 122, § 18; lowa, § 2545; Nebraska, brought in his name, as held in Mc- § 37; Florida, § 68; Kentucky, § 34; Killip v. McKillip, 8 Barb. 552.” He South Carolina, § 140; Nevada, § 12; cites the laws of 1845, ch. 112, which Dacota, § 70; Oregon, § 380: but limited authorize the committee to sue for any to equitable actions; North Carolina, debt, claim, or demand transferred to § 60; Idaho, § 12; Washington, § 8; them, or to the possession and control of Montana, § 12; Arizona, § 12; Wyomwhich they are entitled; also Gorham v. ing, § 40. Gorham, 3 Barb. Ch. 32; Ortley v. Messere, 7 Johns. Ch. 139, and § 111 of the code, and reaches the conclusion that the equity rule as to parties is controlling in actions of this kind. The decision in Person v. Warren, 14 Barb. 488, is expressly approved and followed. S. P. Bearss v. Montgomery, 46 Ind. 544. New York, § 117; Ohio, § 34; Indiana, § 17; Kansas, § 35; California, 2 New York, § 119; Indiana, § 19; California, § 382; Wisconsin, ch. 122, § 20; Florida, § 70; South Carolina, § 142; Dacota, § 72; Oregon, § 381, but limited to equity actions; Nevada, § 14; Ohio, § 36; Kansas, § 37; Iowa, § 2548; Nebraska, § 39; Kentucky, § 36; Missouri, art. 1, § 6; North Carolina, § 62; Idaho, § 14; Washington, § 8; Montana, § 14; Arizona, § 14; Wyoming, § 42. the doctrine of parties plaintiff with respect to their uniting or severing in an action in the reformed American system of procedure, it will be advantageous and even necessary to state in a brief but comprehensive manner the rules which prevailed at the common law, unchanged by legislation. The common law, in respect to the union of defendants, divided liabilities into joint, joint and several, and several; in respect to the union of plaintiffs, it divided all rights into joint, and several. The requirements that all the persons jointly interested should unite as plaintiffs in any action brought to maintain the interest, and that, in the case of a several right, each separate holder of it should sue alone, were very peremptory, and upon them were based the form, extent, and even possibility of the judgment to be recovered. All the possible occasions from which could arise the two classes of rights, joint or several, and which could give an opportunity for the distinction into these two. classes, are (1) contracts in which the rights of the obligees, covenantees, or promisees may be joint or several; (2) wrongs to person, character, or property, not consisting in the breach of contracts; (3) property in land, in respect of which there may be joint ownership, ownership in common, and several ownership; (4) property in chattels, in respect of which there may be joint ownership, ownership in common, and several ownership. These are all the occasions which can give rise to joint or several rights. But the possessors of the rights which spring into existence upon these occasions may themselves be separated into two classes,- those who hold of their own right, and those who hold in a representative character or capacity, as executors, administrators, and trustees of all kinds. To these must also be added the special case of husband and wife; and it is to be determined when they should be united as plaintiffs, and when the husband should sue alone. I shall take up these classes in the order indicated, and shall state the commonlaw rules in reference to the union or severance of parties plaintiff in a legal action, as laid down by text-writers of the most approved authority, but without any discussion of the doctrine or illustration by examples. § 185. First, the rights which arise from contracts. When a contract, either sealed, written, or verbal, is made with two or more persons, and their legal interest therein is joint, all the obligees, covenantees, or promisees, if living, and as many as are living, must join as plaintiffs, even though the covenant or promise to them is in terms joint and several. The interest spoken of is not the interest which will be had in the sum of money or other benefit promised when the agreement is performed, but the interest in the contract, the legal, technical interest created by the terms of the very agreement. This rule as to the union of parties plaintiff in an action brought upon a joint contract being thus universal and peremptory, it becomes a matter of the utmost importance to determine when a contract is thus joint; when the rights of the promisees, or their legal interest in the contract, is joint, and not several. In general, if a promise is made to two or more persons, the right is presumptively joint; a several right is the exception. No express joint words, therefore, are necessary; but some words indicating such an interest must be used to create a several right. A mere promise to A. and B. always creates a joint right, even though the share of the money promised which each is to have is designated.3 The following examples of contracts in which the rights and interests were held to be joint are given as illustrations of this general doctrine. Where one of a firm of bankers had loaned money, all the partners may join in an action to recover it. An agent of three part-owners of a ship sold the vessel, and paid over their respective shares of the price to two of them; it was held that the three must unite in an action to recover the other share, payment of which had been refused; the implied promise was to all the owners jointly.5 A. conveyed land to several persons, and in the deed covenanted with them, "and to and with each and every of them," that he was lawfully seised all the grantees were required to join in an action on this covenant. When one covenants with A. and B. to pay a sum of money to A., both must unite in a suit to recover the money; there is a joint interest in the contract, although A. is the only one interested in the benefit which is to result from its performance.7 11 Chitty Pl. Springfield ed. 1840, p. 8a; Eccleston v. Clipsham, 1 Wm. Saund. 153, n. 1; Anderson v. Martindale, 1 East, 497, 501; Hill v. Tucker, 1 Taunt. 7; James v. Emery, 5 Price, 529; Hatsall v. Griffith, 4 Tyr. 487; Wright v. Post, 3 Conn. 142. 2 Hill v. Tucker, 1 Taunt. 7; King v. Hoare, 13 M. & W. 499, per Parke B.; Yorks v. Peck, 14 Barb. 644. The interest of the promisees or covenantees is the important, and, as the rule is laid down by the text-writers and by most of the cases, the sole criterion by which to decide whether the right is joint or several. If this interest- that is, the legal interest in the contract is joint, the right is joint; if several, the right is several. It has been said that no language of the agreement, indicating that the right is to be several, will avail when the interest is clearly joint, and no language will avail to make the right joint, when the interest is clearly several. Some English cases, however, have modified this doctrine, and have denied that the interest is to be the sole criterion, holding that the express language may control the effect of the interest.2 There is no such thing as a joint and several right as there is a joint and several liability. It is either several, so that each of the promisees must sue separately; or joint, so that all must sue together. The parties never have the option to sue jointly or severally at their pleasure. When a contract is made with a partnership, all the members of the firm must join; even when the promise is nominally to one of the partners alone, if it is intended for the benefit of all, all must sue. A dormant partner, however, need not be joined.5 § 186. Where the legal interest in the contract or the cause of action is several, the covenantees or promisees must sue separately, although the agreement is in its terms joint. The following are some illustrations of contracts in which the interests and the consequent rights of action are several. If a man demises Whiteacre to A. and Blackacre to B., and covenants with See the foregoing cases; also Hopkinson v. Lee, 6 Q. B. 971, 972, per Lord Denman; Withers v. Bircham, 3 B. & C. 254; Servante v. James, 10 B. & C. 410. 2 Sorsbie v. Park, 12 M. & W. 146, 157, per Lord Abinger, p. 158, per Parke B.; Mills. Ladbroke, 7 Man. & Gr. 218; Bradburne v. Botfield, 14 M. & W. 559, 572; Keightley v. Watson, 3 Exch. 716. 3 Slingsby's Case, 5 Rep. 19 a; Eccleston v. Clipsham, 1 Wm. Saund. 153; Petrie v. Bury, 3 B. & C. 353; Scott v. Godwin, 1 B. & P. 67, 71; James v. Emery, 5 Price, 533, per Gibbs C. J.; Foley v. Addenbroke, 4 Q. B. 197; Keightley v. Watson, 3 Exch. 721, per Pollock C. B., p. 723, per Parke B., p. 726, per Rolfe B. Most of these cases arose upon covenants, but the same rules certainly apply to simple contracts. 41 Ch. Pl., same ed., p. 11; Garrett v. Handley, 4 B. & C. 664. 5 Clark v. Miller, 4 Wend, 628; Clarkson v. Carter, 3 Cow. 85; Lord v. Baldwin, 6 Pick. 348, 352; Leveck v. Shaftoe, 1 Esp. 468; Lloyd v. Archbowle, 2 Taunt. 324. 6 Slingsby's Case, 5 Rep. 18b; Eccleston v. Clipsham, 1 Wm. Saund. 153, n. 1; James v. Emery, 5 Price, 529; James v. Emery, 8 Taunt. 245; Dunham v. Gillis, 8 Mass. 462; Baker v. Jewell, 6 Mass. 460; Gould v. Gould, 6 Wend. 263; 1 Ch. Pl., same ed., p. 10. |