a chattel or chattels, the interest of all the owners is conceived of as a unit, both in respect to the right of proprietorship and to the possession, and a single one cannot sue for his part of the thing itself, nor for his share of the profits payable for its use, or of its value if it be taken, converted, or sold, or of the damages if it be injured; all must join so as to represent this unity of interest.1 These general doctrines, which were fully settled in the common law, are unchanged by the new procedure, as will appear from the rules established by the following cases.

§ 139. * 222. Code Decisions. Part-Owners of Ships. The part-owners of ships and other vessels are jointly interested, so far as concerns the maintaining of actions touching the property in them or their use, and must all unite in such actions; as, for example, in a suit to recover freight, whether from the shipper or from a person to whom it has been paid by the shipper.2 It would seem, however, that a portion, one or more, of such owners may sue when the residue refuse to join as plaintiffs, by making such dissentients defendants, and inserting appropriate averments in the complaint or petition; this course is certainly proper if full effect is to be given to the provisions of the codes regulating this particular subject, and they are not to be restricted in their application to equitable actions. Under peculiar circumstances, a portion of the part-owners have been suffered to maintain an action of a similar general nature without even making the others defendants, as stated in the foot-note. 4

§ 140. *223. Joint Owners of Chattels. It is clearly the rule, established under the new system as well as under the old, that, properly, all the owners of a chattel, whether partners or not, must join in an action to recover damages for injuries done to

1 [Cinfel v. Malena (1903), 93 N. W. 165.]

2 Merritt v. Walsh, 32 N. Y. 685; Donnell v. Walsh, 33 N. Y. 43, 6 Bosw. 621.

3 Coster v. New York & Erie R. Co., 5 Duer, 677, 3 Abb. Pr. 332.

4 Bishop r. Edmiston, 16 Abb. Pr. 466 (G. T.). The two plaintiffs and one McL. owned a ship. It was insured and lost, and defendant collected the insurance money. He had settled with McL. for the latter's share. and the plaintiffs sue for their shares. The court held that they were tenants in common, and could bring

the action without joining the other coowner. This reason given for the decision was clearly wrong. The decision would have been in exact conformity with the letter and the spirit of the code if McL. had been made a defendant, and the facts in regard to him had been alleged. In Peck v. McLean, 36 Minn. 228, one of the part-owners of a certain vessel was allowed to sue alone, without joining her co-owners either as plaintiffs or defendants; since they could not be joined as defendants, being out of the jurisdiction, and refused to join as plaintiffs.

it, or for a wrongful taking or conversion of it,2 or to recover its possession. This rule is so firmly settled that nothing less than an express contract in reference to the chattel with one of the co-owners in his own name, by which promises are made directly to him, will suffice to permit a severance. In such a case, while he may sue alone, in virtue of the express undertaking to and with him, yet all the others may, if they so elect, join with him in an action on the contract; for example, a sale of the chattel and a promise to pay the price.5

1 Wells v. Cone, 55 Barb. 585; Hays v. Crist, 4 Kan. 350. See also Swarthout v. Chicago, &c. R. Co., 49 Wis. 625; Pratt v. Radford, 52 id. 114. [Summers v. Heard (1899), 66 Ark. 550, 50 S. W. 78: Where partnership property is seized on execution against one of the partners, an action for damages suffered by reason of the loss of the equity to have the assets of the firm applied to the payment of the joint debts contracted on account of the partnership, should be brought by both partners, but this defect of parties is waived by failure to take advantage of it by demurrer or answer.]

2 Gock v. Keneda, 29 Barb. 120. See also Fuller v. Fuller, 5 Hun, 595; Reeder v. Sayre, 70 N. Y. 180, 181, 190; Spalding v. Black, 22 Kan. 55; State v. True, 25 Mo. App. 451; Welch v. Sackett, 12 Wis. 243; but see Soule v. Mogg, 35 Hun, 79; as to action by one co-owner against another for conversion, see Stall v. Wilbur, 77 N. Y. 158; Hewlett v. Owens, 51 Cal. 570; see ante, § *221, and cases cited. In accordance with the principle of these cases, it was held in Soule v. Mogg, 35 Hun, 79, that an owner-in-common of property separable by weight or measure -in that case, money - might maintain a separate action for its conversion by a third party, as well as for its conversion by a co-owner.

[But see Balletine v. Joplin (1898), 105 Ky. 70, 48 S. W. 417, where it was held that where one mortgaged as his own a mare which another owned jointly with him, the mortgagee and the purchaser at a sale which he procured to be made under attachment are liable to the other joint owner as for a conversion of his interest. And Boley v. Allred (1903), 25 Utah, 402,

71 Pac. 869, where it was held that under Rev. St., 1898, § 2919, the owner of an undivided half interest in personal property may maintain an action for conversion without joining his co-owner as either plaintiff or defendant, and the complaint need not state who owns the other half.

Holders of mortgage liens upon chattels, created by different mortgages filed at different times, have such a joint interest in such chattels as to properly join in an action against a sheriff for conversion, such property being in their joint possession: Trompen v. Yates (1902), Neb. 92 N. W. 647.]

[Vermont Loan & Trust Co v. Cardin (1898), 19 Wash. 304, 53 Pac. 164; Miller v. Crigler (1899), 83 Mo. App. 395. See also Trompen v. Yates (1902), Neb. 92 N. W. 647, where it was held that "Mortgagees holding mortgages of various priority on the same goods who are jointly in possession of them, may join in an action against the sheriff for depriving them of possession and converting the goods to his own use." (Syllabus by the court.)] Bush v. Groom, 9 Bush, 675, 678; Luke v. Marshall, 5 J. J. Marsh. 356. See also Russell v. Lennon, 39 Wis. 570. Contra, Stewart v. Brown, 37 N. Y. 350; Seip v. Tilghman, 23 Kan. 289; contra, joint owners should unite in action to recover property exempt from execution: here, however, the non-joinder had been waived.

4 Justice v. Phillips, 3 Bush, 200.

5 Silliman v. Tuttle, 45 Barb, 171. Action by all the co-owners where a sale had been made, as in the last preceding case, by one of them alone.

§ 141. * 224. Surviving Partners. The new procedure has not, in general, changed the former rules as to the rights and powers of surviving partners when one or more of the firm have died. Now, as before, the surviving partner or partners have the exclusive possession of the firm assets, for the purpose of paying its debts and settling its affairs. They alone can prosecute all actions of a legal nature, to recover debts, or the possession of property, or its value, or damages for its wrongful conversion or misuse. The remedy on all rights of action held by or due to the firm is to be pursued in their names, and the personal representatives of the deceased member or members cannot be joined in such actions by virtue of any interest which they may have in the proceeds, and in the final winding up of the partnership accounts. This doctrine, however, does not mean that every thing in action, belonging to the firm at the time of the death of a member, must invariably be enforced by the survivor, or not at all; he is simply the proper and only person to sue, as long as the thing in action or other personal property remains a part of the firm assets.2 The survivor may assign such a firm asset, and the assignee would thereupon be entitled to sue in his own name, as in the case of any other assignment. When, therefore, a surviving partner had transferred a firm demand to the administrator of the deceased partner, such administrator would be alone able to enforce the collection by suit in his own name, not, however, by virtue of his original representative capacity, but only in his character as assignee.3 § 142. * 225. Extreme Limits to carried Doctrine as to Joint Rights. The rule that all the coowners of a chattel must unite in any action founded upon the property in it has been pushed by some of the courts to its

1 [See McIntosh v. Zaring (1897), 150 Ind. 301, 49 N. E. 164, set out at length in note to § *211, ante. But see, also, Hardwood Log Co. v. Coffin (1902), 130 N. C. 432, 41 S. E. 931, where it is said that the personal representative should be made a party.]

2 [Robertson v. Burrell (1895), 110 Cal. 568, 42 Pac. 1086: The heirs of a deceased partner are not proper parties to bring an action for an accounting in respect to the partnership property, but such action can

which

some Courts have

3 Roys v. Vilas, 18 Wis. 169; Brown v. Allen, 35 Iowa, 306, 311. See, also, especially, Robinson v. Hintrager (Iowa), 36 Fed. Rep. 752, per Shiras J., p. 756. Hargadine v. Gibbons, 45 Mo. App. 460, per Thompson J., and numerous cases cited; s c. (Mo. Sup. 1893), 21 S. W. 726; Crook v. Tull (Mo. Sup. 1892), 20 S. W. 8; State v. Stratton (Mo. Sup. 1892), 19 S. W. 803.

extreme limits, to the extent, as it seems to me, in fact, of nullifying an express and very salutary provision of the reform legislation. I have already discussed the general principle of interpretation referred to with sufficient fulness,1 and shall simply state the additional decisions, without further comment. When, in the case of partners or other joint owners of personal property, one of them is legally disabled, by means of some act of his own, from asserting or maintaining any right in himself, or, in other words, when he has put himself in such a condition that, if he were the sole owner, he would not have a right of action in reference to the property, it has been held that all the partners or co-owners cannot prosecute an action in their joint names, even in respect of the interest of those who have done no acts impairing their individual rights. It is said that, as the right of action is essentially and completely joint, and as therefore all the co-owners must be able to sue, this unity of interest cannot be severed and a recovery permitted for that share of the interest which, as between themselves, belongs to the innocent rather than to the guilty owners. Upon the same principle, and applying in the like manner the rigid doctrine of an absolute unity of right among the co-owners of chattels, the one who had done no act affecting his individual interest cannot sue, in respect of that interest, to recover the portion of the entire demand due to himself by making the others defendants.2 It is plain from the propositions contained in this subdivision, and from the cases cited in their support, that the courts have made no substantial changes, as results of the reformatory legislation, in the rules concerning the parties plaintiff in actions by the coowners of personal property.

§ 143. * 226. III. Legal Actions by Persons having Joint Rights arising from Contract. The general effect of the provisions contained in the codes upon the common-law doctrines respecting joint rights of action has already been discussed with sufficient

1 See supra, §§ *221-*223, and cases cited.

2 Estabrook v. Messersmith, 18 Wis. 545; Frans v. Young, 24 Iowa, 375; Nightingale v. Scannell, 6 Cal. 506; and see Rainey v. Smizer, 28 Mo. 310; Clark v. Cable, 21 Mo. 223; Andrews v. Mokelumne Hill Co., 7 Cal. 330; Russell v.

Allen, 13 N. Y. 173; Tripp v. Riley, 15 Barb. 333. See Hill v. Marsh, 46 Ind. 218. The case of Estabrook v. Messersmith, cited above in this note, has been severely criticised, and its correctness questioned, in Viles v. Bangs, 36 Wis. 131, 139, 140, per Cole J.

fulness, and I shall simply add to that discussion some examples and illustrations furnished by the decided cases. It was shown that the ancient rule, requiring all the joint obligees, covenantees, and promisees to unite in actions brought upon their contracts, had not been abrogated, and only modified perhaps in the single particular of permitting parties to be made defendants who refuse to join as plaintiffs. The doctrine of equity in this respect was substantially the same as that of the law, and demanded a union of all joint claimants to prosecute their joint right by a suit in chancery. When the doctrine of equity was made statutory, and was applied to all classes of actions, it therefore wrought no change in the practical rules. Of course these provisions of the codes as to parties have not of themselves altered in any manner the principles which the common law had established for determining whether a right created by any contract is joint or several. In actions ex contractu, all the persons having a joint interest must be made plaintiffs, and, when one of them dies, the action must be brought or must proceed in the names of the survivors, the personal representatives of the deceased obligee or promisee cannot be joined as co-plaintiffs; and in the same manner, in actions ex delicto for injuries to personal property, all the joint owners must unite, and, if one of them dies, the action is to be prosecuted by the survivors alone. These common-law rules remain in full force. It has been held that two or more

1 [McIntosh v. Zaring (1897), 150 Ind. 301, 49 N. E. 164, quoting the text.] Indiana, B. & W. Ry. Co. v. Adamson, 114 Ind. 282; Bucknam v. Brett, 35 Barb. 596; 13 Abb. Pr. 119; Daby v. Ericsson, 45 N. Y. 786. The survivor was held to be the proper party to sue, although, by an arrangement between himself and the representatives of the estate of the deceased, the proceeds were to belong exclusively to them, and he disclaimed all interest therein. See also Carrere Spofford, 15 Abb. Pr. N. s. 47, 48, 49. That all joint creditors or promisees must join as plaintiffs, see Porter v. Fletcher, 25 Minn. 493; McConnell v. Brayner, 63 Mo. 461; Marie v. Garrison, 83 N. Y. 14, 29; Tinkler v. Swaynie, 71 Ind. 562; Henry. Mt. Pleasant Tp., 70 Mo. 500; Lyford v. No. Pac C. R. Co., 92 Cal. 93; McNamee v. Carpenter, 56 Iowa, 276 (one of two joint owners of a promissory note

V.

cannot maintain an action thereon in his own name without joining the other owner, though the note is payable to bearer and is in his possession). All persons entitled to shares in the same debt may join in an action to recover it, e. g. assignees of different portions. Brett v. First Univ. Soc. of Brooklyn, 5 Hun, 149. Where the wards should be joined as coplaintiffs in a suit by a new guardian on the former guardian's bond, see Wilson v. Houston, 76 N. C. 375.

[See, however, Hardwood Log Co. v. Coffin (1902), 130 N. C. 432, 41 S. E. 931, in which it is held that where a firm is a party plaintiff, and a member of the firm dies, his personal representative should be made a party. Jameson v. Bartlett (1902), 63 Neb. 638, 88 N. W. 860: "Where one of several plaintiffs or defendants dies, in an action pending in this court on error, the right of action, if it survives to