sued, judgment would be given against the husband alone.1 When a contract is made by a firm, all the persons who were then members of the partnership continue liable upon it, even though some of them may have retired from the firm before the contract was broken. No arrangement among the partners themselves can change their liability to their common creditor, unless he is a party thereto, and in some manner discharges an outgoing member from his responsibility. A suit, therefore, where there has been no such discharge, should be brought against all the persons who were partners at the time when the agreement was entered into or the indebtedness was incurred.2

§ 202. * 301. Case of Implied Contracts. Illustrations. The rule which requires that all joint debtors must be made defendants applies to the cases where the contract is implied, as well as to those in which it is express. Thus, when two or more administrators, or an administrator and an administratrix, have been appointed over an estate, and upon their retainer services are rendered by a person for their benefit, as, for example, by a lawyer retained to conduct legal proceedings- affecting the estate, they are jointly liable to him for his compensation, and should be sued jointly in an action to recover it; their different and even hostile interests in the final distribution do not alter the nature of their liability upon the contract, express or implied, made with the person thus employed. The case of persons liable to repay money which had been paid by mistake is another familiar example of liability arising from implied contract; all the parties upon whom such duty rests should be joined in the suit to recover the money. The members of a joint-stock association, not being a corporation, are jointly liable as partners for the debts and contracts of such association.5

1 Bramskill v. James, 11 N. Y. 294. See Groat v. Phillips, 6 N. Y. Sup. Ct. 42, where a wife who had joined in a contract was omitted in the action.

2 Briggs v. Briggs & Vose, 15 N. Y. 471. See also Bowen ». Crow, 16 Neb. 556 (an action to recover taxes levied upon property owned by a partnership, which had been dissolved at the time the action was brought: all the members of the late firm must be joined).

Mygatt v. Wilcox, 1 Lans. 55. * Duncan v. Berlin, 5 Robt. 457.

3

Kentucky, by statute, a surety who has paid the debt or a part thereof may sue the principal debtor and the co-surety in one action, and recover from the former the whole amount, and from the latter his contributory share. Robinson v. Jennings, 7 Bush, 630; 2 R. S. 398, ch. 97, § 7.

[So, in Thurmond v. Cedar Spring Baptist Church (1900), 110 Ga. 816, 36 S. E. 221, it was held that the members of an unincorporated religious society are liable as joint promisors on its contracts. In If such society has duly appointed trustees

Although the statute permits a creditor to sue the president or other managing officer, the judgment thus obtained can only be enforced out of the common property. If he desires to enforce his claim against the members individually, he must unite all of them as defendants, no matter how numerous, as in an action against an ordinary firm. The apparent exception, which existed at the common law, to the general rule requiring all joint debtors to be sued, remains in full force under the new system, so that a dormant partner need not necessarily be included as a defendant in an action against the firm, although of course he may be so joined, if the plaintiff elect.2

§ 203. *302. Survivorship. In States containing no Special Statutory Provisions respecting Joint Liability, Common-Law Rule Unchanged. Practical Result herein. I am finally brought to the case where one or more of several joint debtors dies. The common-law rule had been settled from the earliest period that only the survivors could be sued. Equity had modified this legal doctrine, and permitted an action against the personal representatives of the deceased debtor or contractor. Has any change in this respect been introduced by the new procedure? It is now established by a great preponderance of authority, in those States whose codes do not contain the special provisions concerning joint liability already referred to,3 that these rules, as they existed immediately prior to the reform legislation, have not been in any manner modified, but remain in active operation as a part of the present system. The practical result is, upon the death of one or more joint debtors, obligors, or promisors, a legal action can be maintained against the survivors alone, and in such action the personal representatives of the deceased cannot be made defendants for any purpose. An equitable action, however, can be maintained against the administrators or executors of the

to hold and manage its property, the trustees are the only necessary parties in an action for money furnished to the use of the church: Josey v. Union Loan & Trust Co. (1898), 106 Ga. 608, 32 S. E. 628.]

Kingsland v. Braisted, 2 Lans. 17.

2 North v. Bloss, 30 N. Y. 374; Cookingham v. Lasher, 2 Keyes, 454; Hurlbut v. Post, 1 Bosw. 28; Brown v. Birdsall, 29 Barb. 549; Arnold v. Morris, 7 Daly,

498; Farwell v. Davis, 66 Barb. 73; Leslie v. Wiley, 47 N. Y. 648. Compare Marvin r. Wilber, 52 N. Y. 270. Even when the dormant partner is the husband of the ostensible one. Scott v. Conway, 58 N. Y. 619; Woodhouse v. Duncan, 106 N. Y. 527.

3 See these provisions in the codes of Missouri, Kentucky, Iowa, Kansas, North Carolina, [Minnesota and Arkansas, ante, p. 289, note 1.]

deceased when, and only when, either the legal remedy against the survivors has been exhausted, or such remedy would be absolutely useless. In such equitable action, therefore, the plaintiff must either aver and prove the recovery of a judgment and the issue and the return of an execution thereon unsatisfied, against the survivors, or else that the survivors are utterly insolvent. This rule differs from that prevailing in England in a single particular.2 The English Court of Chancery permits

a suit against the personal representatives of the deceased at once, without attempting, much less exhausting, any remedy at law against the survivor. In other words, the creditor has his option at all times to sue the survivors at law, or the representatives of the deceased in equity, whether the survivors are solvent or not; and this doctrine has been adopted in several American States.1

§ 204. *303. States whose Codes contain Provisions Changing Common-Law Rule. Result. These doctrines and modes of procedure in reference to the enforcing a joint demand when one debtor dies, have not, however, been accepted in all the States which have adopted the new system. In Indiana it is declared to be the true meaning and intent of the provisions of the code abolishing the distinctions between legal and equitable actions, and introducing the equitable principles concerning parties, and providing for a severance in the judgment, that upon the death of one or more joint, or joint and several debtors or obligors, an action will lie at once against the survivors and the administrators or executors of the deceased.2 In certain States, special pro

brought against three surviving joint promisors and the executor of the fourth. The question presented to the court was whether the executor of the deceased maker was properly joined. Section 758 of the Code of Civil Procedure, as amended in 1877, provides that in case of the death of one of two or more plaintiffs, or defendants, if the entire cause of action survives to, or against, the others, the action may proceed in favor of, or against, the survivors; "but the estate of a person or party, jointly liable upon contract with others, shall not be discharged by his death, and the court may make an order to bring in the proper representative of the decedent, when it is necessary so to do for the proper disposition of the matter." The court, by Gray J., says: "While this section, by its place in the code, is applicable to the case of the death of a party pending the action, it must, nevertheless, be regarded as making a material alteration in the law and as imposing a liability where none existed before. . . . At common law, her death would have terminated her liability; but, while no action at law could have been brought against her estate, as she was a

joint debtor, equity, if an inability to collect from the survivors were shown, would have allowed a recovery against the estate. Section 758 of the code, now, by continuing the liability of the estate of the deceased, enables that liability to be enforced in an action at law. It effects, directly, what, formerly, equity intervened to accomplish. But, while the legal rule of liability has been changed, the rule of procedure is not, and when the personal representatives of the deceased joint debtor are directly proceeded against at law, the plaintiff should, still, allege the insolvency, or inability to pay, of the survivors."]

1 Wilkinson v. Henderson, 1 My. & K. 582; Braithwaite v. Britain, 1 Keen, 219; Brown v. Weatherby, 12 Sim. 6, 11. The survivors, however, should be made codefendants.

2 Braxton v. The State, 25 Ind. 82; Eaton v. Burns, 31 Ind. 390. The former of these cases is an able and instructive decision; the opinion presents the equitable theory of interpreting the code in a clear and convincing manner. Voorhis v. Child's Ex., supra, was expressly disapproved. In Klussman v. Copeland, 18 Ind. 306, the uniting the administrator

visions of the codes, or of other statutes, expressly authorize an action to be brought in the first instance against the survivors and the personal representatives of the deceased joint debtor, or even against some, any, or one of them, at the option of the plaintiff.1