North Carolina,15 provides that, "in all cases of joint contracts of copartners in trade, or others, suit may be brought and prosecuted on the same against all or any number of the persons making such contracts." The Colorado statute 16 provides that "all joint obligations and covenants shall hereafter be taken and held to be joint and several obligations and covenants." The common-law rules, then, as to joint or several liability, upon contracts are directly, or in effect, abolished in the states of Kentucky, Arkansas, Missouri, North Carolina, and Colorado.

§ 94. Statutory Provisions as to joinder in several Obligations-Common law Rule-Code Rule.

At common law, parties to a contract are liable to suit, as whether jointly or severally, according to the nature of their obligation; and those holding different relations to the same instrument—as, makers, drawers, indorsers, etc., of negotiable paper-cannot be united as defendants in the same action. But a radical change in this respect has been made in most of the states.

17

The statute of New York, as originally adopted, provided that "persons severally liable on the same obligation or instrument, including parties to bills of exchange and promissory notes, may all, or any of them, be included in the same action, at the option of the plaintiff." 18 This provision, as originally adopted in New York,

15 Code 1883, § 187.

16 Rev. St. Colo. 1868, p. 368.

17 Code Proc. N. Y. § 120, amended by Code Civ. Proc. 1876, § 454, to include "other parties liable over" to a party to the instrument.

18 [This statutory provision would seem to be broad enough to permit a guarantor on a promissory note or other contract to be joined with the original parties in an action on such contract, but it has been held that it does not. Allen v. Fosgate, 11 How. Pr. 218; Virden v. Ellsworth, 15 Ind. 144; Graham v. Ringo, 67 Mo. 324. A contrary rule has been given in Ohio, Iowa, and Kansas. Kautzman v. Weirick, 26 Ohio St. 330.

[Title of Case.

[Petition on a Promissory Note-Payee vs. Maker.

[1st. Allege the execution and delivery of the note, and set out copy. Instead of setting out copy, in some jurisdictions the note itself must be filed [2d. Allege default of payment.

[3d. Prayer.]

was literally copied in Ohio,19 in Wisconsin,20 in Minnesota," in Nebraska,22 in North Carolina,23 in South Carolina,24 in Oregon,25 in Colorado.2 In Indiana, the words "and immediately" are inserted between the words "severally" and "liable," 27 and in Kansas the words "and indorsers and guarantors" follow the words "promissory notes." 28 The following is the Kentucky and Arkansas provision: "Persons severally liable on the same contract, including the parties to bills of exchange and promissory notes placed upon the footing of bills of exchange, common orders and checks, and sureties upon the same or separate instruments may all, or any of them, or the representatives of such as may have died, be included in the same. action, at the plaintiff's option." 29 The California and the Nevada codes insert after the words "promissory notes" the words "and sureties on the same or separate instruments." 30 The same result is reached in Missouri and in Iowa by more general language, the statute of the latter State, as given in the preceding section, being broad enough to make joint obligations several, and the several obligations named joint, so far as concerns parties to actions. The Missouri statute is as follows: "Every person who shall have a cause of action against several persons, including parties to bills of exchange and promissory notes, and be entitled by law to one satisfaction therefor, may bring suit thereon jointly against all, or as many of the persons as he may think proper; and an executor or administrator, or other person liable in a representative character, may be joined with others originally liable, at the option of such person." "1

19 Code Proc. § 38, changed in language in Rev. St. 1880, § 5009.

20 Rev. St. 1871, c. 122, § 21, enlarged in Rev. St. 1878, § 2609, as in New York (note 1, supra).

21 Gen. St. c. 66, § 36.

22 Code Civ. Proc. § 44.

23 Code Civ. Proc. § 63; Code 1883, § 186.

24 Code Proc. § 143.

25 Code Civ. Proc. § 36.

26 Code Civ. Proc. § 14.

27 Code Civ. Proc. § 20; Rev. St. 1881, § 270.

28 Civ. Code, § 39.

29 Bullitt's Code Ky. § 26; Mansf. Dig. Ark. 1884, § 4943.

80 Code Civ. Proc. Cal. 1885, § 383; Comp. Laws Nev. 1873, § 1078

81 Wag. St. p. 1001, § 7; Rev. St. 1879, § 3467.

§ 95. Construction of the Provisions named in the

last Section.

The original New York provision, so extensively copied, provided for a joint action against persons liable on the same obligation or instrument, and is, so far, narrower than those adopted in some of the States. It did not reach independent and collateral agree ments, though pertaining to the same subject-matter. Thus, it was held by the New York City Court of Common Pleas that a guaranty of the payment of rent, though following the lease upon the same paper, but not included in it, was a collateral undertaking, and that the guarantor could not be sued jointly with the lessee.32 It was also held in the Supreme Court that a guarantor of a promissory note cannot be united in an action against the maker, for the reason that the contract of guaranty, though indorsed upon the note, is not the same obligation.33 But if the guaranty be included in, and made part of, the original agreement, it is held to come within the statute. In Ohio a writing in form of a guaranty, if made before

34

32 Phalen v. Dingee, 4 E. D. Smith, 379. This case follows Tibbits v. Percy, 24 Barb. 39, which was also a guaranty upon a lease. De Ridder v. Schermerhorn, 10 Barb. 638, was upon a guaranty of the performance of his duty by an agent, made upon the same paper containing agent's agreement, but not included in it; the union of the agent and guarantor as defendants was held to be improper-their obligations were not the same.

[See, also, Mowery v. P. P. Mast & Co., 9 Neb. 447, 4 N. W. 69; Cole v. Merchants' Bank, 60 Ind. 350.]

33 ALLEN v. FOSGATE, 11 How. Pr. 218. The decision in this case is based chiefly upon the language of Williard, J., in Brewster v. Silence, 8 N. Y. 207, where the question decided was whether a guaranty came within the statute of frauds as an original undertaking, or was part of the note. No question of pleading was directly raised, but the opinion (page 212) thus blended the two questions: "The note and guaranty are not one and the same thing. The note is the debt of the maker; the guaranty is the engagement of the defendant that the maker shall pay the note when it becomes due. A joint action will not lie against them both. They are not the same, but different and distinct contracts." [Contra, KAUTZMAN v. WEIRICK, 26 Ohio St. 330.]

34 CARMAN v. PLASS, 23 N. Y. 286. In this case the action was against a lessee and one who, in the same instrument, had guaranteed the performance of the covenants of the lease, and was described in the instrument as

the delivery of the paper, whether written under or indorsed upon it, is held to be a part of the original undertaking, and not a collateral one; the apparent guarantor is called a surety, and may be sued jointly with the other parties.35 It is held in Wisconsin that a guarantor cannot be joined as defendant in a suit for foreclosure, and a personal judgment rendered against him, as is allowed against the principal debtor.36 In Iowa, under section 2764 of the Code of 1860, which was the same as section 2550 of the Code of 1873,37 it is held that the absolute guarantor of the payment of an obligation, being also the assignor, may be joined as defendant with the maker. In Indiana, it is held that the guarantor of the payment of the rent cannot be united with the lessee in an action to recover the rent, for the usual reason given, to wit, that the contract of guaranty was collateral to the agreement of the lessee. In Missouri, notwithstanding the comprehensive language of the statute, it is held that a guarantor cannot be united, as defendant, with the original obligor."1

39

party of the third part. Denio, J., says that "the provision in question (Code, § 120) relates in terms to cases where a plurality of persons contract several obligations in the same instrument. That was the case here. It may be said that the cause of action is not, in this case, precisely the same against both defendants. The lessee engaged to pay the rent unconditionally, and the surety was under no obligation until the principal had made default. But after such default each of them was liable for the same precise amount absolutely. They were, therefore, within the language which speaks of persons severally liable upon the same instrument."

85 Leonard v. Sweetzer, 16 Ohio, 1; Gale v. Van Arman, 18 Ohio, 336. In the last case, Hitchcock, J., dissents, and claims that the ruling abolishes the distinction between a guarantor and a surety or accommodation indorser.

36 Borden v. Gilbert, 13 Wis. 670.

37 Ante, § 93.

38 Peddicord v. Whittam, 9 Iowa, 471; Marvin v. Adamson, 11 Iowa, 371; Tucker v. Shiner, 24 Iowa, 334; Stout v. Noteman, 30 Iowa, 414. Under a section of the Code peculiar to Iowa, he should, like an indorser, be charged in a separate count. Tucker v. Shiner, supra.

39 Virden v. Ellsworth, 15 Ind. 144.

40 See the preceding section.

41 Graham v. Ringo, 67 Mo. 324; Parmerlee v. Williams, 71 Mo. 410. Nor can the maker and assignor of a non-negotiable instrument. First Nat. Bank v. Gay, Id. 627.

CHAPTER VIII.

OF PARTIES TO ACTIONS, CONTINUED.

7. Defendants in Actions for Equitable Relief.

Section 96. Parties Defendant-The Equity Rule.

97. The statutory Rules.

98. Mortgages-Actions concerning them-Foreclosure.

99. Parties Defendant in Suits to redeem.

100. Parties Defendant in Suits to foreclose.

101. Continued-Subsequent Incumbrancers, and others.

102. Continued-In Case of Death of, or Assignment by, Mortgager. 103.

Continued-Other Interests.

104. Statutory Foreclosure.

105. Where the Liability is joint-The Equity Rule.

106. Continued-The Rule under the Code-Equity Rule Adopted.

107. Decisions upon this Question.

108. In Suits for specific Performance.

109. Continued-As to outstanding Titles.

109a. Trusts-In Actions by Beneficiaries for breach of-General Rule

as to Parties.

109b. Same-In other Actions affecting.

110. Multifariousness or Misjoinder by an improper Union of Defendants.

110a. Who may be united without a Joint Interest.

111. Parties in other Actions.

111a. Whether one should be made Plaintiff or Defendant.

§ 96. Parties Defendant-The Equity Rule.

Mr. Story gives the equity rule as follows: "All persons materially interested in the subject-matter ought to be made parties to the suit, either as plaintiffs or defendants, however numerous they may be, in order, not only that complete justice may be done, but that multiplicity of suits may be prevented; or as the rule was once stated by Lord Hardwicke, that all persons ought to be made parties before the court who are necessary to make the determination complete, and to quiet the question." And further: "It has also

1 Story Eq. Pl. § 76a.

1