is liable upon the familiar doctrine of agency. The injured party may of course sue either separately.' § 313. It has already been said that the general doctrine of the joint and several nature of the liability springing from torts does not obtain in those cases where the injury is essentially a several one, or where, in other words, from its intrinsic character it can only be committed by one person. The most important of this class of torts is slander. No joint action for slander is possible; but such an action can be maintained for the publication of a libel, as in the very familiar and frequent instance of a newspaper, which contains defamatory matter, being owned and published by a partnership.2 In the same manner a joint action to recover damages for a malicious prosecution, which is an injury to character, may beyond doubt be brought against two or more persons who united in promoting the judicial proceeding complained of. § 314. Although in cases of joint torts the law gives the injured party a wide choice to sue all the wrong-doers, or any number, in a single action, or to sue each of them separately, thus bringing as many actions as there are persons, yet it does not permit him thereby to multiply his damages. He can have but one satisfaction. In short, he can collect but one amount of damages out of the many that may have been awarded him in separate actions, although he is entitled to the costs in each suit. If he has prosecuted two or more jointly, and the jury has assessed a different sum as damages against each defendant, the plaintiff may enter the judgment against all for either of these amounts which he elects, and of course he would naturally choose the largest. This rule is based upon the notion that the injury is a 1 Phelps v. Wait, 30 N. Y. 78; Wright . Wilcox, 19 Wend. 343; Montfort v. Hughes, 3 E. D. Smith, 591, 594; Suydam v. Moore, 8 Barb. 358; Hewett v. Swift, 10 Am. Law Reg. 505. When damage is caused by the negligence of a servant of a firm, all or any number of the partners may be sued. Roberts v. Johnson, 58 N. Y. 613, 616. 2 Forsyth v. Edmiston, 2 Abb. Pr. 480. A quære is suggested, whether an action for slander may not be maintained against several persons, if the defamatory words are uttered in pursuance and as the result of a conspiracy among them. This, perhaps, may be possible. 3 This doctrine is not confined to cases of tort; it applies in all instances where there have been separate suits or recoveries against persons who are jointly and severally liable on the same obligation; satisfaction of one is satisfaction of all, except as to costs; and if some of the actions are pending, payment of one may be pleaded in bar of such pending suits. First National Bank v. Indianapolis, &c. Co., 45 Ind. 5. unit, that one award of damages is a compensation for that injury, and that the defendants are equally responsible as among themselves. A satisfaction of one is therefore operative as to all. Imprisonment under a body execution is regarded by the law as pro tanto a satisfaction;1 and if one such judgment debtor, being in imprisonment, is voluntarily discharged therefrom by the cred- . itor, the judgment or judgments against all the others are ipso facto satisfied, even though rendered in separate actions, as fully as though the discharge had been by payment.2 § 315. VII. Actions - generally founded upon statutes — in the Settlement of Deceased Persons' Estates. In many if not all States, actions are authorized by statute, in the matter of settling the estates of deceased persons, which were unknown at the common law, as, for example, an action by a legatee to recover his legacy. It is not within my purpose to inquire when such actions may be brought, but simply to ascertain what special rules, if any, have been laid down in reference to the proper parties therein. A statute of New York requires the heirs of an intestate who have 1 Koenig v. Steckel, 58 N. Y. 475. 2 Kasson v. The People, 44 Barb. 347. The plaintiff had obtained a judgment against G. and one against R. in a separate action against each for a joint trespass. G. was taken on body execution, and, while in custody, was voluntarily set at liberty by the judgment creditor. The plaintiff afterwards took the other defendant, R., on a body execution in his action. R. applied to a judge by habeas corpus, and was discharged. The General Term, on appeal, held this discharge regular, and laid down the doctrines stated in the text. See also McReady v. Rogers, 1 Neb. 124; Turner v. Hitchcock, 20 Iowa, 310. The latter case was very extraordinary. The action was for a trespass, and was against six women and their husbands; and one Johnson was a defendant. The petition alleged that a party of women, of whom the female defendants were a portion, made a raid upon the plaintiff's saloon, destroying property therein. The defendants, except Johnson, answered, among other defences, that, since the action was brought, the plaintiff had released the defendant Johnson; also that one Almira C. was one of the joint trespassers; and, before the action was brought, the plaintiff and she had intermarried, and were then husband and wife. On the trial, it was proved that plaintiff had released Johnson, but that she had taken no part in the trespasses, and was not liable therefor. The other defence was proved exactly as alleged. Upon these facts, the court held that the release of Johnson did not discharge the other defendants, because she was not, in fact, a joint trespasser. On the second defence, Dillon J., after stating the common-law rules concerning joint trespassers, reached the following conclusions: That the code had not changed these former rules; that separate actions may be brought, separate verdicts given, and judgments rendered, but only one satisfaction; that the release of one joint wrong-doer discharges all; and, finally, that the marriage of one with the plaintiff operated as a release and discharge. On this last point the court were equally divided; but they were agreed upon all the other propositions of Judge Dillon's opinion. The case, as a whole, is very instructive, and contains a full discussion of the doctrines concerning joint torts, and a review of all the leading authorities. inherited lands under certain specified circumstances, to be sued jointly and not separately for a debt due from the deceased, the land in their hands being regarded as a fund upon which the debt is chargeable and out of which it is to be paid. It has been held that this statute does not make the heirs jointly liable as joint debtors, but that it merely prescribes a mode of enforcing the demand out of assets which have descended to them. In an action by a residuary legatee against the executor to recover the amount claimed to have been given by the will, all persons interested in the residue must be joined as codefendants with the executor, and if a legacy is charged upon lands, the devisees must also be made parties. When a creditor seeks to recover his demand against the estate, his suit should be prosecuted against the executor or administrator alone; the widow, heirs, legatees, next of kin, and creditors, are neither necessary nor proper parties defendant. This was the universal rule under the former system; and although the code has enacted the equitable doctrines concerning parties, and has made no exception in their application to different actions, it has not changed the procedure in this particular. The administrator or executor represents the estate; is a trustee for all the parties who are interested in its distribution; and his defence is their defence. He is bound to interpose all necessary and available answers to demands made upon the estate, and the law presumes that he will faithfully perform this duty. The general language of the codes certainly does not require a greater latitude in the admission of parties defendant who are interested in the event of the suit than was demanded by the practice of the equity courts. It has not therefore been so construed as to make the widow, heirs, legatees, and others necessary or proper defendants, although they may seem to be interested in the result of the controversy. The same is 1 New York Laws of 1837, p. 537, are charged upon the lands of the de78; Kellogg v. Olmsted, 6 How. Pr. ceased. 487. 2 Tonnelle v. Hall, 3 Abb. Pr. 205. Such an action, although it may be authorized by statute, is in all its features equitable; and the equity rules as to parties must control it. See Towner v. Tooley, 38 Barb. 598, as to the necessary defendants in an action upon an administration bond by legatees whose legacies 3 Nelson v. Hart, 8 Ind. 293, 295. The action was by a creditor to recover a debt due from the decedent. He had made not only the administrator but the widow and next of kin defendants. The court say: "It is true, a judgment for the plaintiff must be paid out of property which would otherwise go to the widow or heirs; hence they would seem to be interested in the true even when the testator has bequeathed all his property, real and personal, to a single legatee; the creditor must pursue his claim against the executor and not against the legatee.1 Although, in general, an action to recover a debt or demand due to the estate must be brought by the administrator or executor alone, yet in some exceptional instances such suit may be instituted and prosecuted by a legatee or distributee, when the administrator or executor is incapacitated from suing.2 § 316. VIII. Some Special Actions not included in either of the foregoing classes. In New York, an action against a county should be brought against "The Board of Supervisors" of the specified county, and not against the supervisors individually or by name. A suit may be maintained between two firms having a common partner, he being made a defendant, and suitable averments being inserted in the complaint or petition. Where a particular religious society or individual church is incorporated, an action to recover a debt or damages for the breach of a contract due from it must be brought against this corporation, and not against the bishop or priest, whatever may be the ecclesiastical powers and authority of such clerical officers. In certain States the assignor of a non-negotiable thing in action, or where result of the controversy. But the subject-matter of this suit is simply a claim against the decedent's estate; and the administrator who represents their interest in the estate is in duty bound to make all necessary defences against the claimant's demand. His defence is their defence. We are not inclined to adopt such a construction as will allow each creditor of an estate, in the prosecution of his claim against its administrator, to join as defendants the widow and heirs." See also Stanford v. Stanford, 42 Ind. 485, 488, 489. In an action against the sureties on an administrator's bond, he himself being dead, his administrator is not a necessary defendant, and the next of kin of the original decedent are not proper defendants. Flack v. Dawson, 69 N. C. 42. If one of two executors dies, and an action is brought against his personal representative to recover a demand against the original estate, the surviving executor must be made a codefendant. McDowell v. Clark, 68 N. C. 118, 120. Perry v. Seitz, 2 Duv. (Ky.) 122. The creditor sued the widow, alleging that the deceased had given to her all his property, and praying judgment to be enforced against the assets in her hands. The action was held improper. Such an action would be permitted by the statutes of some States if the executor had settled the estate, and the claim had not been presented to him within the period prescribed by law. 2 See Fisher v. Hubbell, 1 N. Y. Sup. Ct. 97; s. c. 65 Barb. 74; 7 Lans. 481; Lancaster v. Gould, 46 Ind. 397. 3 Hill v. Board of Supervisors, 12 N. Y. 52. 4 Cole v. Reynolds, 18 N. Y. 74; Englis v. Furniss, 4 E. D. Smith, 587. 5 Charboneau v. Henni, 24 Wisc. 250. A peculiar case. The action was against a Roman Catholic bishop, to recover the cost of building a church edifice belonging to a religious society. the assignment is not expressly authorized by statute, is a necessary defendant in an action brought by the assignee.1 § 317. In the case of a substitution of one party for another as a debtor, that is, when a debt being due from one person, another for a valuable consideration assumes such indebtedness and promises to pay the same, it has been decided in Indiana that the creditor may maintain an action against the substituted debtor, but must join with him the original debtor as a codefendant, under the general provision of the code requiring or permitting all persons to be made defendants who are necessary parties to a complete determination and settlement of the questions involved.2 In this decision the court has accepted to its full extent the equitable theory of parties, and has applied it unreservedly to a purely legal action; for since the creditor had surrendered all claim upon the original debtor, he could recover no judgment in the action against such debtor, and the latter's presence could only be necessary for his own protection and that of the other defendant. It is probable that this ruling would not be followed by those courts which have partially or wholly confined the operation of the statutory provisions in question to equitable actions. When the stockholders of a corporation are by statute made personally responsible for an amount equal to the amount of stock held by them, the liability is not joint, and each must be sued separately.3 been extended to cases not expressly within its terms. Thus, where a firm G. & Co. were indebted to the plaintiff on certain notes, and one D. made a contract in writing with the firm by which he agreed in general terms to assume and pay all their debts, and the plaintiff relying on this contract sued D. to recover the amount of such notes, it was held, upon D.'s objection, that the members of the firm were necessary defendants to protect D.'s interests. Durham v. Bischof, 47 Ind. 211; S. P. Hardy v. Blazer, 29 Ind. 226. 1 Harvey v. Wilson, 44 Ind. 231, 234; v. Downing, 34 Ind. 300. This rule has Allen. Jerauld, 31 Ind. 372; Indiana, &c. R. R. v. McKernan, 24 Ind. 62; Holdridge v. Sweet, 23 Ind. 118; French v. Turner, 15 Ind. 59; Gower v. Howe, 20 Ind. 396. When a negotiable promissory note is indorsed and transferred, it carries with it the title to a mortgage given as security, so that the assignor-the mortgagee is not a necessary defendant in a foreclosure suit. Bondurant v. Bladen, 19 Ind. 160; Nelson v. Johnson, 18 Ind. 829; Hubbell v. Skiles, 16 Ind. 138; Hopkins v. Organ, 15 Ind. 188; Perry v. Seitz, 2 Duv. (Ky.) 122; Lytle v. Lytle, 2 Metc. (Ky.) 127; Gill v. Johnson's Administrators, 1 Metc. (Ky.) 649. See Shane v. Lowry, 48 Ind. 205, 206; Strong 2 Hardy v. Blazer, 29 Ind. 226. |