severance in the recovery is possible when the right sought to be maintained on the one side, and the liability to be enforced on the other, are not originally joint. The discussion is therefore reduced to the question, When may a severance in the judgment be had, so that it may be rendered for a part of the plaintiffs and against the others, and against a part of the defendants and for the others? From the answer to this inquiry we shall ascertain between what parties" a several judgment may be had in the action; and as a further consequence, when the counter-claim may be against one or more of the plaintiffs, or in favor of one or more of the defendants. In pursuing the discussion, I shall collect and examine some of the leading judicial decisions which have given a construction to the clause, and shall endeavor to ascertain from them the general principles and rules that may determine, in each particular case, when a counter-claim of this form and nature is proper.'

§ 632. *756. (1) Against One or Some of the Plaintiffs. Illustrative Case. An action for an accounting and recovery of the amounts found due was brought by three plaintiffs against two defendants under the following circumstances. The five parties had entered into an agreement for the publication of a newspaper: the defendants were to be the actual publishers, and to have charge of the business; and, after paying all the expenses, the net proceeds were to be divided into five equal parts, of which the defendants were to retain two, and one of the other "three parts shall be paid by [defendants] in cash to each of the other parties to this agreement," the plaintiffs. The answer, besides other separate defences, contained a counter-claim consisting of a judgment recovered by the defendant R. against the plaintiff H., and assigned to both the defendants before the suit was commenced. This counter-claim was set up against the plaintiff H. alone. The New York Court of Appeals held that although the action was in form joint, yet the right of each plaintiff was several; and a several judgment, declaring the sum to which each was entitled, was necessary.2 Nothing can be more firmly settled than the

1 [Lebanon Steam Laundry v. Dyckman (1900), Ky., 57 S. W. 227; Murphy v. Colton (1896), 4 Okla. 181, 44 Pac. 208; Van Etten v. Kosters (1896), 48 Neb. 152, 66 N. W. 1106.]

2 Taylor v. Root, 4 Keyes, 335: "Hence, as to either of the plaintiffs, if the de

fendants had averred and proved payment in full of his share, the defence as to such plaintiff would have been effectual; and yet the other two plaintiffs would have been entitled to judgment for the several amounts of their shares. . . . The same principle is applicable to a defence in the

general rule, that in the absence of a statutory provision to the contrary, where an action is brought by a partnership on a claim due the firm, no demand in favor of the defendant against one or some of its members can be used as a counter-claim;' but an apparent exception to this rule has been admitted. If the business had been carried on by one or more of the firm as ostensible partners, a debt owing by him or them may be interposed as a counterclaim, although all the members have united in the action. By their mode of conducting the business, the ostensible partner or partners had been held out to the world as the real firm, and they could sue or be sued without joining the others as parties to the proceeding. The case of a demand against the plaintiff or plaintiffs on the record, and others who are not parties to the suit, being pleaded as a counter-claim, has already been considered. It does not present exactly the question now under consideration, but depends for its solution upon the same general principles. It is settled by the decisions, that a joint indebtedness or liability due from the plaintiff and from others not parties to the suit cannot be used as a counter-claim against the plaintiff, because such a cause of action cannot be severed and a judgment rendered against a part only of the persons liable.3

nature of a counter-claim. . . . The plaintiff's position is undoubtedly correct, that where the cause of action is strictly joint, and the recovery, if had, is for the joint benefit of the plaintiffs, the defendant cannot set off or counter-claim the individual debt of either plaintiff to defeat or reduce a joint recovery." Such, however, was not the present case, because there was no joint demand on the part of the plaintiffs. The counter-claim was therefore sustained. See also, as illustrating the general conclusions of the text, Freeman v. Lorrillard, 61 N. Y. 612, 617; Field v. Hahn, 65 Mo. 417.

1 Nipper v. Jones, 27 Mo. App. 538; Peck v. Snow, 47 Minn. 398; Morganthau 17. King, 15 Col. 413.

S. D. 404, 64 N. W. 188; Folsom v. Pailing (1899), 58 Neb. 478, 78 N. W. 926.]

2 Van Valen v. Russell, 13 Barb. 590, 592, per Edwards J.; citing 7 Durnf. & E. T. R. 361 (note c); Er p. Enderby, 2 Barn. & C.389; Smith v. Watson, 2 Barn. & C. 401. See also Rush v. Thompson, 112 Ind. 158. "Where a factor dealing for a principal, but concealing that principal, delivers goods in his own name, the person contracting with him has a right to consider him to all intents and purposes as the principal; and though the real principal may appear and bring an action upon that contract against the purchaser of the goods, yet that purchaser may set off any claim he may have against the factor in answer to the demand of the principal;" per Lord Mansfield, in Rabone v. Williams, 7 Durnf. & E. T. R. 360 (n.); followed in Hogan v. Shorb, 24 Wend. 458; Pratt v. Collins, 20 Hun, 126; Taunebaum v. Marsellus (N. Y. City Ct. 1893), 22 N. Y. Suppl. 928.

3 See supra, §*754; Schubart v. Harteau, 34 Barb. 447 ; Belknap v. McIntyre,

§ 633. * 757. Several Judgment between Some of the Parties. Inquiry Presented herein. Conflict of Opinion. Upon the general question, When can a several judgment be rendered between some of the parties to an action? there has been much conflict of judicial opinion, and discrepancy of decision. It resolves itself into the broader inquiry, How far has the common-law doctrine of joint rights and liabilities been changed by the new procedure? The judges of one school have denied any modification in these legal notions, and have restricted the language of the statute to equitable proceedings. Another school have gone to the opposite extreme, and have declared the ancient rules as to joint right and liability to be utterly abolished, so that a severance among the plaintiffs or defendants in the recovery may be had in all cases.1

2 Abb. Pr. 366; Mynderse v. Snook, 1 Lans. 488; Spofford v. Rowan, 124 N. Y. 108; McCulloch v. Vibbard, 51 Hun, 227; Ingols v. Plimpton, 10 Col. 535; Wood v. Brush, 72 Cal. 224. Contra in Iowa, Redman v. Malvin, 23 Iowa, 296; and in North Carolina, Sloan v. McDowell, 71 N. C. 356-358; Neal v. Lea, 64 N. C. 678; Harris v. Burwell, 65 N. C. 584. This ruling is not based upon any peculiar statute, but upon the general provision of the code, § 248, that a “judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; " which is the same as found in all the other codes. Where, in Kentucky, an action was commenced against a resident of the State by a non-resident firm, a demand against one of the plaintiffs was allowed as an equitable set-off or counter-claim, because the defendant could not sue upon it in that State. Wallenstein v. Selizman, 7 Bush, 175. Where the subject of the counterclaim is a tort for which each and all of the wrongdoers are liable, it is no objection that the tort was committed by a firm composed of the plaintiffs and others not parties to the suit. Walker v. Johnson, 28 Minu. 147.

against C., in every respect proper and sufficient to constitute a counter-claim, if the latter had been the only plaintiff. This answer having been struck out on motion, the General Term, upon appeal, pronounced it a valid counter-claim, aud available to the defendant as pleaded. Two questions, it was said, are raised. "First, in an action upon contract by two or more plaintiffs, can one of them have judgment in his favor, the evidence establishing the cause of action in him alone? Secondly, if so, can the defendant, upon showing the cause of action to be solely in the one plaintiff, avail himself of a set-off against that plaintiff in a case where he would have had the right to do so had the action been commenced by that plaintiff alone?" Both of these questions were answered in the affirmative. It was said that the new procedure extended the rules of equity to all legal actions, and so far abrogated the legal notions of joint right and liability that the sections permitting a judgment "to be given for or against one or more of several plaintiffs, and for or against one or more of several defendants," are most general in their terms, and should not be restricted to actions in which the right sued upon is several, and not joint; and that, a several judgment being thus made possible, the conclusion as to the propriety of the counter-claim against one plaintiff followed inevitably from the express language of the statute. In other words, no matter what be the form of the action, although the plaintiffs have alleged

This loose or liberal interpretation has, however, been utterly repudiated by other cases, which, as it seems to me, establish, by a very decided preponderance of judicial authority, the doctrine as now generally accepted in those States whose codes compose the two groups mentioned at the commencement of the section.1 The doctrine established by these decisions is, that if the demand in suit was originally joint and several, although the action upon it is joint, and a fortiori if it was several, a several judgment might

have been recovered, and the counter-claim against part of the plaintiffs, or in favor of a part of the defendants, is possible: when the demand in suit is originally joint, a severance is impossible.

§ 634. * 758. (2) In Favor of One or Some of the Defendants. Settled Rule herein. In the following cases the counter-claim was interposed by one or some of the defendants against the single plaintiff, or all the plaintiffs if more than one. The same general principles of joint and several right and liability control this class of actions and the one just considered, and the same decisions are authorities in both. The rule is settled that, in an action against defendants who are joint contractors and jointly liable, a separate judgment against one or more less than all is not possible except in a few special personal defences; that in an action, though joint in form, against defendants who are joint and several contractors, and a fortiori against defendants who are severally liable, such a separate recovery may always be had. The doctrine thus stated has been applied to the case of defendants sued upon a bond in terms joint and several.2

1 Peabody v. Bloomer, 5 Duer, 678, 679, per Woodruff J.; s. c. sub nom. Peabody v. Beach, 6 Duer, 53; 3 Abb. Pr. 353. The same construction was given to the statute by Mr. Justice Marvin, and applied to the admissibility of a counterclaim, in Parsons v. Nash, 8 How. Pr. 454; and as his reasoning has been frequently approved, and his conclusions adopted by other courts, I shall quote his opinion, not as a binding authority, — for it was delivered at Special Term, but as an argument. The three makers of a joint and several note, H., N., and P., were sued in a joint action, H. being the principal debtor, and the others his sureties. The answer was a counter-claim of a judgment in favor of H. alone against the plaintiffs for an amount greater than the sum secured by the note. It was admitted on the trial; and the plaintiffs moved to set aside the verdict. After referring to § 150, the judge proceeds: "The counter-claim is to be a claim existing in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action. This clearly indicates that there may be cases where the set-off or counter-claim may not be due to or in favor of all the de

fendants; and to ascertain between whom a several judgment may be had in the action, we must look to other provisions of the code, particularly §§ 136 and 274. In my opinion, in an answer proper for a set-off or counter-claim against several defendants severally liable, or jointly and severally liable, any one of them may avail himself of his set-off or counterclaim, or any number of the defendants to whom the set-off or counter-claim is jointly due may avail themselves thereof." On the general subject of counterclaims in favor of all or a part of the defendants, see also Bathgate v. Haskin, 59 N. Y. 533, 539, 540 (in an action to foreclose a mortgage made to secure a joint bond given by the mortgagor and A. as his surety, a debt due from the plaintiff to the mortgagor is a good counter-claim, although the fact that A. signed as surety did not appear on the face of the bond); Weil v. Jones, 70 Mo. 560; Davis v. Notware, 13 Nev. 421; Plyer v. Parker, 10 S. C. 464; Great West. Ins. Co. v. Pierce, 1 Wyom. Ter. 45.

2 People v. Cram, 8 How. Pr. 151. The opinion in this case has been frequently cited with approval, and has never been questioned. See also, to the