for the benefit of the whole."1 Finally, a section is found in every code particularly referring to the case of persons severally liable on the same instrument, of which the ordinary form is as follows: "Persons severally [and immediately, Indiana] liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may all or any of them be included in the same action at the option of the plaintiff." "2

§ 272. The subject-matter of the present section is the interpretation of the general clauses of the statute quoted above, the doctrine of parties defendant in its general scope and import, the general rules which prescribe the choice and direct the joinder of defendants in civil actions of all kinds, whether legal or equitable. The special cases described in the other clauses of the statute, namely, that of one person suing or being sued as the representative of others, and that of persons severally liable upon the same instrument, will be separately discussed in the two sections which follow the present one. The doctrine of parties, and especially of parties defendant, in its entirety, is intimately connected with that of judgments, and cannot be exhaustively treated, without a discussion also of the latter topic. Many im

1 These provisions are thus found as a single section in New York, § 119; Indiana, § 19; California, § 382; Wisconsin, ch. 123, § 20; Florida, § 70; South Carolina, § 142; North Carolina, § 62; Nevada, § 14; Oregon, § 381; Dacotah, § 72; Washington, §§ 14, 15; Idaho, § 14; Wyoming, § 42; Montana, § 14. In the following States they are separated into two sections, corresponding to the two paragraphs of the text: Ohio, §§ 36, 37; Kansas, §§ 37, 38; Iowa, §§ 2548, 2549; Nebraska, §§ 42, 43; Kentucky, §§ 36, 37. The Missouri code contains only the first paragraph, as art. 1, § 6, the same as § 36 of the Ohio code.

2 New York, § 120; Kansas, § 39; Minnesota, § 35; Wisconsin, ch. 123, § 21; Nebraska, § 44; Florida, § 71; Ohio, § 38; Indiana, § 20; Oregon, § 36; South Carolina, § 143; North Carolina, § 63; Nevada, § 15; Dacotah, § 73; Washington, §16; Idaho, § 15; Wyoming, § 43; Montana, § 15. In California, § 383, is the same, adding, "and sureties on the same or separate instruments," after the words "promissory notes." The provision in

Nevada, Idaho, Wyoming, and Montana is also the same as that in California. For the corresponding sections in the codes of Kentucky, Iowa, and Missouri, see infra, § 403. In these codes the change in the common-law doctrine is carried to a much greater length; the distinctions between joint, joint and several, and several liabilities are utterly abrogated. The same radical change is made in North Carolina. "§ 63 a. In all cases of joint contract of copartners in trade or others, suits may be brought and prosecuted on the same against all or any number of the persons making such contract." In Nevada, § 14, and Wyoming, § 42, it is provided that “joint tenants, tenants in common, or copartners, or any number less than all, may jointly or severally" sue and be sued. A similar clause is found in the California code, § 384, except that coparceners" is substituted for copartners.” Placing 'copartners' in the same position as "joint tenants" and "tenants in common," is a very strange provision, and was doubtless an oversight.

portant decisions, and even certain practical rules which might naturally have been introduced in this connection, are, therefore, postponed for the present, and will appear in a subsequent chapter. Joint and several rights and liabilities involve both the questions of joint and several judgments, and of the union and severance of parties plaintiff and defendant. It would only produce confusion, however, if we should anticipate the regular order of the subject-matter, and should attempt to combine in a single discussion all the particular topics which enter into the theory of joint and of several liabilities. In carrying out the design of the present section, I shall follow the general plan adopted in the one last preceding, and shall (1) state in a concise manner the established rules of the common law concerning the selection and joinder of defendants in legal actions; (2) determine the general principles introduced by the reform legislation, and the true theory of its interpretation; and (3) exhibit the application of these principles made by the decided cases, explain the changes which have been made in the former system, and ascertain the practical rules as to parties defendant as they now exist.

The Common-law Doctrines and Rules.

§ 273. Whenever any liability rests upon two or more persons as the consequence of the same act or event, the common law regarded such liability in general as either joint, joint and several, or several. This division had originally a twofold relation; for it affected both the external forms and modes of enforcing the liability by actions at law, and also the essential nature of the liability independent of any such mere methods of enforcement. In other words, these three classes differed from each other in respect to the joining or the not joining of the persons liable in a single action. This was doubtless the most important element of difference among them; it remained unchanged while the common-law procedure existed; and the principal question to be determined by the present discussion is, whether it has been changed by the provisions of the new American system. But, in addition to this element of difference, which related solely to the mode of enforcement, there was another still which related to the existence and duration that is, to the very being of the liability. Joint liability was distinguished from the other two classes in this, that,

at the death of one of the persons upon whom the joint duty rested, such obligation absolutely ended as to his estate and representatives, and became entirely concentrated, as it were, upon the survivors. As one after another died, the same process continued, until the whole liability rested, as a sole obligation, upon the last survivor of all, and, upon his death, passed to his estate and personal representatives. This doctrine of survivorship prevailed at the common law, and, at an early day, before the innovations made by equity, it was the ordinary practical rule controlling the relations between debtor and creditor; so that if one of two joint debtors died, the creditor had absolutely no recourse of any kind except against the person and property of the survivor, the estate of the deceased debtor being freed from all claim whatsoever. Even after relief became possible from the courts of equity, the doctrine continued to prevail under exactly the same form in courts of law and in legal actions, so that such actions could only be maintained against the survivors; and if the creditor was restricted to the law courts and to the modes of remedy which they furnished, the ancient rule applied to him with full force and effect. The relief granted by equity, however, had long rendered this rule a mere matter of form. The primitive doctrine had long been practically abandoned; the liability was not, in fact, confined to the survivor of the joint debtors; the estate of the deceased might be held responsible; only the creditor must pursue his remedy in a court of equity, instead of a court of law. This result was natural and proper enough as long as two separate species of tribunals and two distinct systems of procedure were retained; but that the same result should continue after the jurisdictions had been consolidated into one, and after all distinctions between actions at law and suits in equity had been abolished, and one mode had been established for the pursuit of all civil remedies, is, beyond the power of expression, absurd.

§ 274. Such being the two generic elements of distinction between the three classes of liabilities established by the common law, it is of the utmost importance to determine the marks which distinguish one from the other, and to ascertain in this manner what liabilities are joint, what joint and several, and what several. Liability may arise either from contract, or from some act which is not a contract, and to which the name tort has been given by

English and American writers and judges. Little difficulty exists in reference to liabilities arising from torts; it will be seen in the sequel that they are not, in general, joint in their nature. In respect to liabilities springing from contract, the difficulty is much greater, as there is no such simple and comprehensive rule. The discussion found in the preceding section,' concerning joint and several rights, applies as well in its general features to the subject of liabilities; the same essential principles are controlling in either While, however, the nature of the interest, rather than the form of the promise or obligation, is the ultimate criterion by which to ascertain whether the right is several or joint, the form of the promise or obligation alone determines the character of the liability when the contract is express, and the intention of the parties gathered from all the surrounding circumstances, when the contract is implied.

case.

§ 275. Applying this test, the following are the general principles, stated in a very concise manner, which define the nature of liabilities arising from contract, and separate them into the three groups or classes already mentioned. Whenever a liability resting upon two or more persons is created by contract, the presumption is that such liability is joint, that is to say, it is joint, unless express words and terms of the contract make it several, or joint and several. The tendency or inclination of the law is in favor of joint liabilities; no express language is necessary to produce that quality; but, on the other hand, some special terms or words are requisite to bring the liability into either of the two other classes.2 An ancient work of high authority says: "If two, three, or more bind themselves in an obligation thus obligamus nos [that is, we bind ourselves, we undertake, we promise], and say no more, the obligation is, and shall be, taken to be joint only, and not several." 3 If two or more contract with the same person to do or to forbear from one and the same thing, their liability is joint, in the absence of any special words to show that a different one is intended. This rule is emphatically true in cases of implied liabilities.* Whether the liability is joint, joint and several, or several, depends upon the terms of the contract, if express; upon the intention of the parties gathered from the circumstances, if implied.5 1 See supra, §§ 185, 186. 41. Ch. Pl. (Springfield ed., 1840),

2 1 Parsons on Cont., p. 11, and cases

cited.

p. 41.

5 Peckham v. North Parish, 16 Pick.

3 Shepherd's Touchstone, p. 375. See 274, 283, per Wilde J.; 1 Parsons on Cont., Ehle v. Purdy, 6 Wend. 629. p. 11.

§ 276. A joint and several liability generally arises from express language of the agreement, such as, "we jointly and severally promise." If, however, a promise is written in the singular number, but is actually made by two or more as the obligors or promisors, their liability is joint and several; as, for example, a promissory note in the form, "I promise to pay," &c., but signed by several persons as the makers. This particular species of liability seems to demand express language of some sort for its creation; it is never found as a feature of implied contracts, unless, perhaps, in those instances where the injured party may, at his election, regard the wrong done him as a breach of implied contract, or as a tort; but in these instances it will be found that the fundamental element of the liability is tort, and not contract. Having determined into which of the three classes a given liability falls by the application of the foregoing principles, we are next to consider the common-law rules which control the union or severance of the parties thereto as defendants in actions I shall consider separately actions ex contractu and actions

ex delicto.

§ 277. I. Actions ex contractu, or those in which the liability arises from contract. When the liability is joint, all the persons upon whom it rests must be united as defendants in an action brought upon the contract. This rule is general, and applies to undertakings, obligations, and promises of all possible descriptions.2 There are, however, two apparent, if not real, exceptions. Dormant partners need not be made defendants in an action against the firm, although of course they may be joined. Also, when infants or married women have in form contracted jointly with persons sui juris, their names should be omitted as defendants in an action upon the contract, and the suit should be brought against the parties alone who were able to contract. The last rule in relation to married women has been abrogated in all those States which now permit wives to engage in business and to bind themselves by contract. The modern legislation on this subject will be stated, and its results explained, in a subsequent

1 Sayor v. Clayton, 1 Lutw. 695, 697, 21 Ch. Pl., p. 42, and cases cited; per Powell J.; Van Alstyne v. Van Slyck, 1 Wms. Saund. 153, n. (1); Ib. 291 b, 10 Barb. 383; Hemmenway v. Stone, 7 n. (4). Mass. 58. But see, for a peculiar case, in which, from the special provisions of the contract, this rule was not applied, Slater v. Magraw, 12 Gill & Johns. 265.

31 Ch. Pl., p. 43, and cases cited. 4 Ibid.