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A. J. K., deceased, or for themselves and said other heirs, and every part thereof, [or if from a part only, set forth what part,] and still keeps and holds said plaintiffs and heirs from the possession and occupancy thereof; and said defendant has thereby broken and failed to perform his said covenant in this, to wit, that he has not, at all times, peaceably and quietly, &c., [set forth language of covenant.]

By reason whereof the said plaintiffs, for themselves and all other heirs so as aforesaid, have not only lost said lands and tenements, but also divers sums of money by them expended in repairs and improvements thereon, and the costs and charges of defending said action to recover possession, amounting in all to the sum of $

Wherefore the plaintiffs, in behalf of themselves and all other heirs of said A. J. K., demand judgment against the defendant for the sum of $, with interest thereon from the besides costs.1

day of

G. L. F.,

Plaintiffs' Attorney.

1 The two foregoing precedents are drawn under the provisions of section 119 of the Code, to illustrate the application of the rule, that one or more persons may sue for the benefit of the whole, when "the question is one of a common or general interest of many persons, or when the parties are very numerous, and it may be impracticable to bring them all before the court." That section also provides that they may not only sue but "defend, for the benefit of the whole." This does not, however, it is thought, give the plaintiff the right to sue one or more on a joint liability or interest, where the other parties are known, but he should bring them all before the court as defendants. If some of the parties who should be defendants are unknown, as in the case of a partition suit (in which it is expressly authorized by statute), a complaint in which is given, ante, page 241, this section of the Code undoubtedly applies, and one or more of the defendants might put in an answer, either by way of defence or

(6.) COMPLAINTS AGAINST PERSONS SEVERALLY Liable on same OBLIGATION OR INSTRUMENT, § 120 OF THE CODE.

(No. 27.)

Against first and third endorser of promissory note.1

SUPREME COURT-COUNTY OF RENSSELAER.

A. B.
agt.

C. D. and E. F.

The complaint of the abovenamed plaintiff respectfully shows to this court, that one P. C., on the 1st day of

1 See also, ante, Nos. 4, 5, 6, for precedents against different parties on promissory notes.

counterclaim, as well for themselves as for all others similarly situated. Such an answer will be found in a subsequent part of this volume.

The rule as to parties defendants, in this respect, as established by the Code, is, no doubt, the same with that heretofore existing in equity, and is well stated by Justice STORY, in Mandeville and others v. Riggs, 2 Peters' U. S. R., 487: "One of the great principles upon which courts of equity generally require all persons who are known and within reach of its jurisdiction to be made parties, is to prevent future litigation, and to take away multiplicity of suits. It is a matter of justice, as well as of convenience, that all the parties who are ultimately liable to contribution should, when practicable, be brought before the court, so that the equities between them may be adjusted, as well as the right of the plaintiff. There are exceptions, it is true, to the rule, but they are founded upon special considerations, such as where a decree of contribution would be useless, or where the proceeding would defeat the jurisdiction of the court, and the parties are not indispensible to a decree, or where the convenient administration of justice forbids it in the particular case."

The section under consideration also provides that when the consent of a person who ought to have been joined as plaintiff cannot be

July, 1857, at Troy, made his certain promissory note in writing, whereby he promised to pay to the defendant, C. D., or order, the sum of $250, three months from the date thereof, and the said payee thereof endorsed the said note to one A. L. M., by whom the said note was endorsed to the defendant, E. F., and by said E. F., for value received, endorsed to the plaintiff; and he believes that, when the said note became due and payable, it was duly presented for payment to the maker, and payment thereof was duly demanded, but the same was not paid, and that due notice thereof was thereupon given to the defendants, C. D. and E. F., and that said note is still due and unpaid. Wherefore the plaintiff demands judgment against the said defendants, for the said principal sum of $250 and interest, from the 4th day of October, 1857, besides costs. J. L. F.,

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(No. 28.)

On a joint and several sealed note against the survivor and representatives of deceased makers, alleging insolvency of survivor.1

SUPREME COURT-ESSEX COUNTY.

A. B.
agt.

C. D., and E. L. and E. J., administrators, &c.,

of E. F., deceased.

The plaintiff complains of the defendants, and alleges the following facts, constituting his cause of action.

That the defendants, C. D., and E. F., in the lifetime of said E. F., that is to say, on the day of executed under their hands and seals, and delivered to the plaintiff, a promissory note, whereby, &c., [as in the preceding form, or, of which the following is a copy,] which note is due and wholly unpaid.

' It should be observed, that the practice in cases of this kind can scarcely yet be regarded as entirely settled. The decision in Ricart v. Townsend (6 How., 460), holding that in an action brought to reach the partnership property, the surviving partner, and the representatives of the deceased partner may be joined, has not been sustained, and seems to be generally disapproved by subsequent decisions; and the construction put by the courts upon section 118 of the Code is not as broad as that claimed for it by the commissioners. Very few, if any, of the other cases have gone farther than to hold, or intimate, that the representatives of a deceased joint contractor can be properly united in the same suit only when the insolvency of the survivor is alleged. The complaint in the present case is drawn within the principle laid down in the case of York v. Peck and others (14 Barb., 644). See this whole subject discussed, and various authorities cited, Pleadings, 161-166.

day of

the said E. F., then

That on the residing at -, in Essex county, died, and that such proceedings were thereupon had before the surrogate of said county that letters of administration of the goods and chattels of said deceased were duly issued on the day of to the defendants, E. L. and E. J., by order of the said surrogate of that day, and said E. L. and E. J. have duly qualified as such administrators, and have taken upon themselves the execution of such duty.

That C. D., the surviving maker of said note, is insolvent, and has been ever since the same became due, and has not sufficient property, exempt from execution, to pay said note or any part thereof, and the plaintiff cannot collect the same from him by legal process or otherwise.

Wherefore the plaintiff demands judgment against the defendant, C. D., individually, and against the defendants, E. L. and E. F., as administrators, &c., to be paid in the due course of administration of said estate, in the sum of with interest thereon from day of besides costs.

$

J. H. C.,

Plaintiff's Attorney.

(No. 29.)

Against two of three makers of a joint and several bond.1

Title of the Cause.

The plaintiff complains of the defendants, and alleges: That the defendants and one C. D. executed under

1 In Morehouse's Executors v. Ballou and others (16 Barb., 289), it is intimated that, notwithstanding section 120 of the Code, the

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