man.

The action in this form was plainly without any foundation; the remainder-man was improperly joined, as he was in no manner liable on the covenant.1

§ 198. * 297. II. Actions against Owners or Possessors of

Chattels. In Actions to recover Possession of Chattels, CommonLaw Rule not Changed. The actions which fall under this subdivision, and which have any distinctive features, are very few in number. Those brought to recover damages for a tortious act, trespass, or negligence, committed by means of a chattel, and those brought to recover damages for the conversion of a chattel, properly belong to the subdivision which treats of actions for torts in general. The common-law rules as to parties defendant in an action to recover possession of chattels have not been in any manner affected by the new procedure. Such action must be brought against the party or parties in actual possession of the chattel demanded by the plaintiff.2 If this actual possession is in one, he must be the sole defendant; if in two or more jointly, - as, for example, in a partnership, they must all be made defendants. There is a particular case in which the action may be maintained against one in constructive possession, as well as against the party in actual possession. If the original taking of the goods was wrongful, and the wrong-doer has subsequently parted with the possession by assignment, the action will still lie against him, or it may be prosecuted against both himself and the assignee whose possession is actual.5 Possession by the party, however, and not the claim of ultimate ownership, is in general

81 Ch. Pl. pp. 122, 123 (Springfield ed. 1840); Gassner v. Marquardt, 76 Wis. 579; Washington v. Love, 34 Ark. 93; Harkey v. Tillman, 40 Ark. 551; and Helman v. Withers (Ind. App. 1892), 30 N. E. 5, citing numerous cases; Scott v. McGraw, 3 Wash. 675; Willis v. De Witt (S. Dak. 1892), 52 N. W. 1090, and cases cited.

4 Nichols v. Michaels, 23 N. Y. 264, 270, 271. See Haughton v. Newberry, 69 N. C. 456.

5 Nichols v. Michaels, 23 N. Y. 264, 268, 270, 271, per James and Selden JJ. See, however, Davis v. Van de Mark, 45 Kan. 130; Feder v. Abrahams, 28 Mo. App. 454.

the ground for making him a defendant. If the possessor is sued, and a third person also sets up a claim of title, the conflicting demands may be determined by means of an interpleader between the plaintiff and this claimant, ordered by the court at the instance of the defendant, if he in fact admits that he himself has no right in and to the goods.1

$199. *298. Ship-Owners. The liability of ship-owners for supplies furnished or repairs made, or upon other contracts, express or implied, in respect to the vessel itself, gives rise to rules which properly fall under this subdivision. I do not now stop to inquire when, how, or by whom the owners may be bound, nor what are the powers of the master or other agent in managing the vessel. It is assumed that the power exists and has been properly exercised, and that a liability has arisen for the supplies, repairs, or other aid to the ship; and the single question is, What is the extent of the liability, upon whom does it rest, and against whom should it be enforced? When a liability has been created by the master or other agent for supplies furnished to the vessel, the part-owners are responsible in solido, and should all be joined. as defendants; the nonjoinder of some is a defence by those sued; 2 and the same is true in the case of repairs and of all other expenses properly incurred in sailing her. An action to recover compensation in the nature of salvage for services rendered in saving and securing a disabled steamboat under circumstances entitling the plaintiff to such compensation, was held to be properly brought against all the persons and corporations who owned interests in the boat, even though their interests were distinct and unequal, and even though some of them were separate

1 See code of New York, § 122 (452, 820); California, § 386; Nebraska, § 48; North Carolina, § 65; Nevada, § 17; [Arizona, Rev. St., 1901, § 1308; Arkansas, Sand. & Hill's St., §§ 5635-5637; Colorado. § 18; Connecticut, Gen. St., 1902, § 1019; Georgia, Code, 1895, § 4896; Idaho, Code Civ. Pro., 1901, § 3176; Indiana, Burns' St., § 274; Iowa, Code, 1897, § 3487; Kansas, Gen. St., 1901, 4474; Kentucky, § 30; Missouri, Rev. St., 1899, § 417; Montana, § 588; North Dakota, Rev. Codes, 1899, § 5240; Ohio, Bates' St., § 5016; Oklahoma. St., 1893, § 3915; Oregon, Hills' Laws, § 40; South Carolina, § 143; South Dakota, Ann. St.,

1901, § 6085; Utah, Rev. St., 1898, § 2924; Washington, Bal. Code, § 4842; Wisconsin, St., 1898, § 2610; Wyoming, Rev. St., 1899, § 3490.]

Lia

2 Sager v. Nichols, 1 Daly, 1. 3 Bassett v. Crowell, 3 Robt. 72. bility in solido means a joint liability, where all must be proceeded against, and the judgment is recovered against all, but may be fully enforced against either, and he left to his right of contribution, if any, against his fellows. In reference to the general doctrine stated in the text, consult Smith's Mercantile Law, pp. 237, 238 (Am. ed.), and Abbott on Shipping, pp. 116-118 (marg. pag.).

insurers of her by different policies, to whom an abandonment had been made on account of a total loss. Although their interests and their liabilities were unequal, they might all be sued in a single action, and a separate judgment could be rendered against each in proportion to his or its liability.1

$ 200. * 299. III. Actions upon Contract; Joint Liability. Common-Law Rules Unchanged in Legal Actions. Exceptions. Notwithstanding the general intent of the codes which, I think, is very plain - to substitute the equitable in place of the legal doctrines upon the subject of joint liability and of the necessary defendants in actions brought thereon, this intent has not guided the courts in the decision of the particular cases as they have arisen. The overwhelming weight of authority, in passing upon the subordinate and practical questions, has determined that no such change has actually been made, and that the common-law rules are left controlling in all legal actions. The only modification-and it is rather formal than real-seems to be in the manner of raising the questions. In an action against joint debtors, or to enforce a joint liability arising out of contract, all of the joint debtors or joint contractors that are living must be united as co-defendants; and a neglect to make such union of parties, if properly taken advantage of, will be fatal to the action. In other words, the codes, in the absence of such ex

1 Cloon v. City Ins. Co., 1 Handy, 32, per Gholson J., Superior Court of Cincinnati.

2 This general statement does not, of course, apply in those States whose codes expressly change the common-law rules in respect to joint debtors and joint liability upon contract, and expressly permit any number to be sued, and also the personal representatives of deceased joint debtors to be united with the survivors, etc. See supra, § 118.

3 [But where all have not been served with process, the action may proceed against those served: Gyger v. Courtney (1900), 59 Neb. 555, 81 N. W. 437; Perkins County v. Miller (1898), 55 Neb. 141, 75 N. W. 577; Clark v. Commercial Nat. Bank (1903), Neb., 94 N. W. 958.

In Greer v. Waxelbaum (1902), 115 Ga. 866, 42 S. E. 266, the court said: "A petition in an action brought against a

partnership described as the firm of A. & B., and alleged to be composed of the individuals A. & B. is not amendable so as to make the action one against a partnership described as the firm of C. & B., and composed of the individuals C. & B."

All partners must be joined: Jones r. Langhorne (1893), 19 Colo. 206, 34 Pac. 997; Cox v. Gille Hardware Co. (1899), 8 Okla. 483, 58 Pac. 645. Where a joint liability but not a partnership is alleged, proof of the partnership is admissible to show the joint liability: First Nat. Bank v. Hattenbach (1900), 13 S. D. 365, 83 N. W. 421.]

4 [Montana, by statute, allows snit against two or more persons transacting business under a common name, to be brought against them in such commen name, the summons to be served on one or more of the associates, § 590. Similar statute in Colorado, § 14; California,

press provisions as are found in those of some States,1 have not changed the nature of joint liability on contract, nor assimilated it to a several or joint and several one.

generally accepted in the States which have adopted the reform system of procedure, in a few of them, as has been said, the language of the statute is much more specific, and this language, it is held by the courts, substantially abolishes all joint debts and contract liabilities, and reduces them to joint and several liabilities; or, rather, it produces a still greater effect, for, as judicially interpreted, it permits the creditor to sue one, all, or any number he pleases, of the debtors or persons liable on the contract.1

§ 201. 300. One of two or more Joint Contractors Incapacitated. Retired Partners. If one of two or more joint contractors is incapable of entering into a valid agreement, but all are sued jointly in one action, judgment may be recovered against those alone who are capable of contracting and of binding themselves thereby; as, for example, where a note had been given in a firm name, and the partners, who were husband and wife, were both