provision. It requires the dissenting creditor or co-contractor, who refuses to be a plaintiff, to be made a defendant, for the very purpose of concluding him, by the judgment, from any subsequent prosecution on his own behalf. He is added as a party, and "has his day in court," and this will be a complete bar to a future attempt on his own part, if he should change his mind. No possible injustice could therefore be done to the defendant, and great injustice would necessarily be done to the creditor who desires to enforce his lawful demand, if the utterly arbitrary rule sustained by these and similar cases should be generally approved as the correct interpretation of the codes. The New York Court of Appeals has determined that an action may be maintained by one firm against another firm to recover a sum ascertained to be due, although the two partnerships have a common member who is made a defendant, with proper averments, in the complaint; and the action need not be brought for the equitable relief of an accounting, but for the legal relief of an ordinary money judgment.1

§ 229. IV. Actions by persons having several rights arising from contract. As the principles have been already stated in the preliminary discussions of this section, it is only necessary to add some further illustrations furnished by the decided cases. The common-law doctrine in respect to several rights and actions does not seem to have been changed, unless, possibly, under the operation of the equitable rule embodied in the codes, plaintiffs having strictly several rights may be allowed to unite in legal actions, under circumstances which establish a certain community of interest among them, although under the same circumstances they would have had no such election at the common law. There is at least a tendency shown by some of the decisions towards such a modification of the rule which formerly prevailed in reference to several rights and causes of action. The following examples will serve to illustrate the nature of several rights, and the doctrine as to parties plaintiff in suits brought to enforce them. Tenants in common of a tract of land, who hold their titles by different conveyances from the same

1 Cole v. Reynolds, 18 N. Y. 74. The fundamental principle involved in this decision is the same as that advocated in the text. A party who, in pursuance of the

ancient rule as to joint causes of action, should be a plaintiff, is permitted to be a defendant. I simply contend that this principle should be regarded as general.

grantor, each of which contains covenants relating to the land and its use, cannot unite in an action brought against the grantor to recover damages for the breach of such covenants; their interests under the covenants and their rights of action are in every sense several.1 The obligees in an injunction bond, where the interests interfered with by the injunction are separate, and the injury done to each is distinct, cannot join in a suit to recover damages for these several causes of action; their recovery in such proceeding must be limited to the damages that are strictly joint.2 Certain persons executed the following written agreement: "We, the undersigned, agree to guarantee the depositors of W. E. C. [a banker] in the payment in full of their demands against said W. E. C. on account of money deposited with him." Each depositor, it was held, must sue separately upon this guaranty to recover the amount of his individual claim; all the depositors could not join in a single action, because their interests were entirely several, neither one having any interest in the demand of another. A number of persons having each subscribed different sums of money for a loan to a certain party in aid of a proposed enterprise, and a committee of three having been appointed to act as agents for the subscribers, which committee entered into a written contract with him containing various stipulations concerning the use of the money, and also an undertaking on his part to repay the amounts advanced, each of the subscribers was held entitled to maintain a separate action against the borrower to recover the sum loaned by himself.* Five persons entered into a written agreement stipulating that, if either or any of them should be drafted during the late war, the others would contribute equal sums to enable him or them to hire substitutes. Three of the parties having been drafted and procured substitutes, one at a cost of $1,500, and the others for

1 Samuels v. Blanchard, 25 Wisc. 329. 2 Fowler v. Frisbie, 37 Cal. 34; but, per contra, see Loomis v. Brown, 16 Barb. 325. It is held in Ohio that the interests of the obligees in an attachment bond are several, although the undertaking is in terms joint. Where such a bond was given to three persons, an action on it by two of them, who were partners, and whose firm property had been wrongfully seized under the attachment, was sus

tained. Alexander v. Jacoby, 23 Ohio St. 358, 383.

3 Steadman v. Guthrie, 4 Metc. (Ky.) 147, 151.

Rice v. Savery, 22 Iowa, 470. The court held that the committee might also sue as trustees of an express trust, the promise having been made directly to them, and also that each creditor could sue.

$1100 each, it was held by the Supreme Court of Indiana that each must sue the others in a separate action for the stipulated indemnity, and a joint action by the three was dismissed.1 A number of persons being interested in opposing a certain claim and in defending suits thereon, appointed a committee to employ counsel and to conduct the defence, and agreed to pay the expenses incurred by such committee. The cost of the defence not having been contributed, the committee paid the same, and thereby became entitled to reimbursement. This right, it was held, was a several one in each member thereof, and a separate suit by each to recover the sum paid out by himself was proper rather than a joint action by all to recover the whole amount which had been disbursed.2 Under the general statutes of New York, providing for the formation of corporations for various purposes, and making the stockholders personally liable under certain circumstances to the creditors of the corporation for the debts thereof, this right of action in the creditors is a several one, and a separate action may therefore be maintained by each creditor. It is admitted,

As

Goodnight v. Goar, 30 Ind. 418. the analysis of this contract, given in the opinion of the court, may be instructive in explaining the nature of several rights, I quote from it at some length. After stating that the code adopts the equity doctrine as to parties, and applies it to all actions, Frazer J. proceeds: "The present inquiry is reduced to this: Could these plaintiffs have been joined in chancery? In solving this question, we may be aided by considering the nature of the contract upon which the action is brought. The obligations which it imposes are strictly several, each party for himself alone being bound in a certain event to pay. The obligation thus assumed is to each one of the plaintiffs separately by each defendant for one-fifth of such sum as that plaintiff was obliged to pay for a substitute for himself. This proportion due from one cannot be either increased or diminished by the fact that another plaintiff is also entitled to recover from the same defendant a like proportion of the sum paid by him for a substitute. Each plaintiff has an interest only in compelling the defendants severally to reimburse him, and cannot possibly be affected by the success or failure of any

one of his coplaintiff's in the suit. They
have, therefore, no joint or common inter-
est in the relief sought, which is the object
of the suit. Nor have they any joint or
common interest in the subject or founda-
tion of the action, which is the failure of
the defendants respectively to pay accord-
ing to the contract. The failure to pay
Goodnight does not concern any other
plaintiff'; and so the failure to pay each
of the plaintiff's is a matter of entire in-
difference to the others. If each two of
the five persons had mutually contracted,
by a separate writing, to pay one-fifth of
whatever sum might be necessary to pro-
cure a substitute for either if drafted, there
would have been twenty separate paper
contracts instead of one as now.
It was
a matter of convenience merely that one
writing, executed by all, should have
been adopted to evidence their several
undertakings; but it imposed exactly the
same liabilities as if twenty writings such
as we have mentioned had been used. In
the latter case it would have been too
plain for doubt that each plaintiff must
sue separately. Why should it be other-
wise now? There is certainly no good
reason."

2 Finney v. Brant, 19 Mo. 42.

however, that a proper action may be brought against all the stockholders for the benefit of all the creditors. A bond having been given for the payment of a certain sum to the heirs of A., eight in number, upon the death of their mother, it was held by the Supreme Court in New York, that an action might be maintained by one heir against the obligor, or, he being dead, against his administrator, to recover one-eighth of the entire sum; that the right of the obligees was several and not joint.2 Where three towns were each liable for a share of the cost of erecting a bridge, and the proper officers of each the highway commissionersprocured the same to be erected, but the entire expense thereof was actually advanced and paid out by two of these commissioners, their right of action against the third commissioner to recover the amount thus disbursed for his use was declared to be several, and a joint action against him, it was held, could not be maintained.3

§ 230. V. Actions by persons having a joint right arising from personal torts. The common-law rule governing the selection of parties plaintiff in such actions is entirely unchanged. When the personal tort produces a common injury to all, and thus creates a common damage, all the persons affected by the wrong must join in an action to recover the damages. In pursuance of this principle, all the members of a partnership may and must unite in an action for a libel or slander on the firm by which its business is injured. Undoubtedly, the instances in which a common as distinguished from a several injury can be done to a number of individuals by personal torts, must necessarily be rare; but when they do occur, the rule as stated must be applied. A single illustration will suffice. False and fraudulent representations concerning the pecuniary responsibility of a certain person having been made to a partnership, by which it was induced to sell goods to him on credit, and the price of the goods not being paid or recoverable by reason of the purchaser's insolvency,

1 Weeks v. Love, 50 N. Y. 568. It was said that all the cases impliedly hold the doctrine above stated; and the following were cited: Briggs v. Penniman, 8 Cow. 387; Mann v. Pentz, 3 N. Y. 415; Osgood v. Laytin, 5 Abb. Pr. N. s. 1; Garrison v. Howe, 17 N. Y. 458.

118.

3 Corey v. Rice, 4 Lans. 141. There was no joint or common interest held by the towns which the plaintiffs represented in the sum which was thus advanced; it was not like an advance made by a partnership, or made out of a fund owned by the plaintiffs together. The implied prom

2 Hees v. Nellis, 1 N. Y. Sup. Ct. ise of the defendant was, therefore, not

to the plaintiffs jointly.

it was decided by the New York Court of Appeals, that an action to recover damages for the deceit should be brought by all the partners jointly.

--

§ 231. VI. Actions by persons having several rights arising from personal torts. The converse of the proposition stated in the preceding paragraph is also as true now as it was prior to the new system of procedure. Where a personal tort has been done to a number of individuals, but no joint injury has been suffered and no joint damages sustained in consequence thereof, the interest and right are necessarily several, and each of the injured parties must maintain a separate action for his own personal redress. It follows, therefore, that when a tort of a personal nature, an assault and battery, a false imprisonment, a libel, a slander, a malicious prosecution, and the like, is committed upon two or more, the right of action must, except in a very few special cases, be several. In order that a joint action may be possible, there must be some prior bond of legal union between the persons injured-such as a partnership relation of such a nature that the tort interferes with it, and by virtue of that very interference produces a wrong and consequent damage common to all. It is not every prior existing legal relation between the parties that will impress a joint character upon the injury and damage. Thus, if a husband and wife be libelled or slandered, or beaten, although there is a close legal relation between the parties, it is not one which can be affected by such a wrong, and no joint cause of action will arise. The doctrine above stated has been fully recognized and asserted by the courts since the codes were enacted. A fire company - a voluntary associationhaving been libelled, a joint action by its members to recover damages against the libeller was held improper; not being partners, and not having any community of legal interest whereby they could suffer a common wrong, the right of action was several, and each must sue alone.2 The same rule has been applied in the case of two or more persons, not partners, suing

1 Zabriskie v. Smith, 13 N. Y. 322. The action was actually brought by three out of four partners; but, no objection being properly taken, the defect was waived. The court further held that, as the right of action was joint, the share of the partner not made plaintiff could not be shown by the defendant, and allowed in

mitigation of damages; although, if the plaintiffs had been entitled as owners in common, such a mitigation of damages, and deduction from the recovery, would have been proper and necessary.

2 Giraud v. Beach, 3 E. D. Smith, 337; Hinkle v. Davenport, 38 Iowa, 355, 358; Stepank v. Kula, 36 ib. 563.