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 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. 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. 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 * 1 See ante, § 227 and note. 2 Samuels v. Blanchard, 25 Wis. 329. 3 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 sustained. Alexander v. Jacoby, 23 Ohio St. 358, 383. See ante, § 266, and notes, and Vandermulen . Vandermulen, 108 N. Y. 195, 204, there cited. For further illustrations see Great West. Compound Co. v. Ætna Ins. Co., 40 Wis. 373; Hubbard v. Burrell, 41 id. 365; Eldridge v. Putnam, 46 id. 205; Brett v. First Univ. any interest in the demand of another.1 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 $1,100, 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. 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. 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, however, that a proper action Soc. of Brooklyn, 5 Hun, 149; Small v. 2 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. Where three towns were each liable for a share of the cost of erecting a bridge, and the proper officers of each the highway commissioners-procured 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 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 . 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. 2 Hees v. Nellis, 1 N. Y. Sup. Ct. 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 promise of the defendant was, therefore, not to the plaintiffs jointly. Where a policy of insurance provided for the payment of different sums to different parties, it was held improper for the beneficiaries to join in one action to recover the several sums due: Keary v. Mutual Reserve Fund L. Ass'n, 30 Fed. Rep. 359. Two of three contracting parties agree to perform certain services for the third, and each of the two is to receive therefor a separate and distinct compensation; each may bring a separate action, it being quite immaterial that in the rendition of the services for which they were to receive their several compensation their joint action may have been necessary: Richey r. Branson, 33 Mo. App. 418; Bowman v. Branson (Mo. 363. 1892), 19 S. W. 634. The plaintiff and two others, H. and B., acting on behalf of the S. Company, covenanted that the plaintiff should perform certain work for the defendants, in consideration of which the defendants promised to pay the plaintiffs a stipulated sum. It was held that the plaintiff could maintain an action to recover a balance alleged to be due on the contract price, without joining H., B., or the S. Company: Craig v. Fry, 68 Cal. One of the sureties in an official bond covenanted to indemnify his cosureties against liability on the bond, and one of the latter was compelled to pay part of a defalcation of the principal; it was held that he could sue alone upon the covenant. Cross v. Williams, 72 Mo. 577: "If the consideration for the promise of indemnification made by the defendant was that the sureties should go on H.'s bond, though it moved from many persons, yet it moved from each one severally," citing Parsons on Contracts, p. 18. See also Bush v. Haeussler, 26 Mo. App. 265. In general, one surety can sue alone at law to enforce contribution from a co-surety, without joining his other cosureties: Voss v. Lewis, 126 Ind. 155. [Duncan v. Willis (1894), 51 O. St. 433, 38 N. E. 13; Defendant, having knowl edge that the plaintiff and his brother were desirous of purchasing, each for his own separate use, a number of head of § 147. *230. V. Legal Actions by Persons having Joint Rights 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 neces light feeding hogs, represented to them that he had one hundred hogs to sell of the kind and quality desired, which were sound, healthy and free from disease, and for which he had paid $5.00 per hundred pounds, but declined to sell in separate lots; he would sell the Duncans the entire lot and they could divide them to suit themselves. Relying upon these representations the brothers purchased the one hundred hogs, paying $5.124 per hundred pounds, the plaintiff and his brother each to have fifty head of the hogs as his separate and individual property, and to feed separately on their respective farms. On the same day the hogs were divided in accordance with the agreement, and plaintiff took his fifty at once to his own farm, where some of them died on the same day by reason of hog cholera. They had been exposed to this disease and were infected with it at the time of the sale, all of which was known to the defendant, who had in fact purchased them as diseased hogs, and for a much less sum than $5.00 per hundred pounds. Not only did plaintiff lose the diseased hogs which died, but the disease was communicated to his other hogs, and he was greatly injured thereby. Held, that this contract of purchase, though joint in form, and based upon a consideration moving jointly from the two, was in spirit and essence, a separate contract as to each, and that the rights acquired under it by the purchasers were separate and distinct. Citing many cases, English and American. Union P. R. Co. v. Vincent (1899), 58 Neb. 171, 78 N. W. 457: "A railroad company made with two persons a contract, in form joint, for the transportation of horses, a portion of which belonged to one of the shippers and the remainder to the other. None was owned in common. The horses of one were injured, and he sued, naming the other as a defendant because he refused to join as plaintiff. No objection was made for defect of parties until the trial began. Held, without deciding how an action in such case should be brought, that the railroad company could not complain because one of three situations must exist. The suit was sufficiently brought by the person whose stock was injured, as the real party in interest; or else it was sufficient to make the other a defendant alleging that he would not join as plaintiff; or if he must necessarily have joined as plaintiff, the defect appeared on the face of the petition and was waived by not demurring on that ground." Baughman v. Louisville, etc. R. R. Co. (1893), 94 Ky. 150, 21 S. W. 757: Where a contract for the shipment of horses owned by different persons was made with the carrier by one person acting as agent for them all, each owner had a separate action for damages suffered by him for breach of the contract of shipment, and all could not unite in one action. Brown v. Farnham (1893), 55 Minn. 27, 56 N. W. 352; In an action upon a composition agreement, any creditor being a party thereto may bring a several action for his damages for the breach thereof.] sarily 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, 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.2 § 148. * 231. VI. Legal 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 1 [McIntosh v. Zaring (1897), 150 Ind. 301, 49 N. E. 164: Where several contracts are made between defendant and three firms of attorneys for legal services, the fees to depend upon the amount of recovery or the sum obtained through compromise, and defendant fraudulently represents that as a result of compromise a smaller sum was obtained than was in fact the case, upon the basis of which representations the firms of attorneys settle with defendant, a joint right of action arises in the firms of attorneys by reason of such fraud, since all are alike interested in avoiding the settlement. Beetle v. Anderson (1897), 98 Wis. 5, 73 N. W. 560: "Where several persons induced by false representations, purchased a mortgage, each contributing one-fourth of the money, held, that their interests in the securities were joint; and they might properly sue jointly for the fraud." Cohen v. Wolff (1893), 92 Ga. 199, 17 S. E. 1029: Where different persons have been induced by fraud to sell goods to a firm, and the firm executes mortgages upon the goods so purchased, all the persons so defrauded may join in an action to have the mortgages declared void. Wunderlich v. Chicago & Northwestern R. Co. (1896), 93 Wis. 132, 66 N. W. 1144: An insurer who has paid the loss on insured property to the assured, becomes subrogated pro tanto to the latter's right of action against the third person through whose negligence the loss occurred, and the insurer and assured should properly join in an action for the negligent burning. Elliott v. Pontius (1893), 136 Ind. 641, 35 N. E. 562: Several plaintiffs who have independent demands as creditors against a defendant debtor, may sue jointly for relief against a fraudulent scheme to remove the debtor's property, but when the fraud alleged is shown not to exist, the joint right ceases and each must revert to his several right against the debtor.] 2 Zabriskie v. Smith, 13 N. Y. 322. See also Cochrane v. Quackenbush, 29 Minn. 376 (joint action by partners for a malicious prosecution, to recover for injuries thereby caused to their joint credit, business, and property); Peakes v. Graves, 25 Neb. 235 (joint action by partners for deceit). An action brought by members of a firm to recover damages for an alleged slander relating to the credit of the firm does not abate by the death of a member; the entire cause of action vests in the survivors. Shale v. Schantz, 35 Hun, 622. |