페이지 이미지
PDF
ePub

GENERAL
RULES.

[ocr errors]

the whole consideration to have been paid by himself and B.], they were jointly interested, and neither of them could maintain a separate action” (q).

It has been laid down, that “though the consideration be joint, yet, if the promise is several, the several promisee [i.e., the person to whom the separate promise is made) may sue alone" (r).

This statement rests on cases such as the following :

In consideration that A. and B. would sell to X. their partnership business, X. promised A. to pay him certain sums of money, and it was held, on a motion in arrest of judgment, that A. could maintain an action against X. without joining B. (8).

“It is true," it was said by Parke, B. in this case, " that no stranger to a consideration can sue; but in the present case the separate interest of the plaintiff in the partnership fund, is the consideration upon which the promise is founded" (t).

A partner, again, has been held capable of maintaining an action upon an agreement in writing made with him alone, although the agreement related to the business of the firm, and the consideration was a release by the partners in question of a debt due to the firm (u). Here, also, stress was laid by the Court upon the fact that under the complicated circumstances of the transactions between the parties, there was a separate consideration moving from the plaintiff for the contract with him.

These cases are not, therefore, (it is submitted) inconsistent with the principle that an action for a breach of contract should be brought by all the persons from whom a joint consideration moves. They go to show

(9) Hill v. Tucker, 1 Taunt. 9, per Chambre, J.
(r) Lush, Practice, 3rd ed., 21.
(8) Jones v. Robinson, 1 Exch. 454 ; 17 L. J. 36, Ex.
(1) Jones v. Robinson, 1 Exch. 456, judgment of Parke, B.
(u) Ajacio v. Porbes, 14 Moo. P. C. 160.

GENERAL
RULES

Action by plaintiff in name of coplaintiff.

that where the consideration is divisible, so that one part of it may be treated as proceeding from one only of the parties to the contract, this separate consideration will support a separate promise to the party from whom it proceeds, who, therefore, may sue alone for the breach of such promise.

One of two co-plaintiffs has a right (v) to bring an action in the name of both (~), nor has the Court any power to interfere, unless the co-plaintiff's name be used, not only against his will, but fraudulently (y). Hence,

one of several partners has a right to use the name of the firm "(z), in order to bring an action. But a coplaintiff whose name is used without his permission is not without protection.

1st. He may obtain an indemnity against costs from the party who makes use of his name (a); i. l., he may apply to the Court to have such party's proceedings stayed till he gives security for costs (6).

2ndly. He may release or settle the action (c).

Any one of several co-plaintiffs may give the defendant a release from the action, which is good, and may be pleaded, unless it is fraudulent (11).

(v) Contrast Langston v. Wetherell, 27 L. J. 400, Ex., cited p. 105, ante, with Emery v. Mucklow, 10 Bing. 23. The difference seems to be that the Courts will not force a person to be treated as a party with whom a contract is made, when he has never assented to its being made with him; but that where two persons have allowed a contract to be made with them, the Courts will allow one of the two to use the name of the other in an action for its breach.

(2) Emery v. Mucklow, 10 Bing. 23.
(y) Ibid., 24.

(2) Whitehcad v. Hughes, 2 D. P. C. 259. Strictly speaking, the names of his co-partners, for actions are not brought in the name of the firm. See Rule 20.

(a) Whitehead v. Hughes, Ibid. 258.

(6) Laws v. Bott, 16 M. & W. 300. The plaintiff, whose name is used, has not, however, in all cases an absolute right to an indemnity against costs, Emery v. Mucklow, 10 Bing. 23.

(c) Crook v. Stephens, 5 B. N. C. 688 ; Johnson v. Holdsworth, 4 D. P. C. 63 ; Herbert v. Piggott, 2 C. & M. 384.

(d) Rawstorne v. Gandell, 15 M. & W. 304 ; 15 L. J. 291, Ex.

GENERAL
RULES.

[ocr errors]

When two of several co-plaintiffs gave a release to the defendant, the Court refused to interfere (e).

“No doubt this is . ... an exercise of a strict legal right in a manner very mischievous and injurious to the other plaintiffs, and for which the parties may perhaps be responsible to another tribunal; but we have no power to interfere, if there be the smallest right or real interest on which the release may operate at law. If the plaintiff [A.] is not suing altogether on behalf of the other plaintiffs--if he be not a mere name—the release by him is effectual, and we ought not to interfere. A court of law has no machinery for working out the equities of these conflicting interests. In truth, the application is neither more nor less than a bill in equity, to discover whether [A.] is or is not still interested in the concern” (f).

“We cannot interfere to prevent the defendants from pleading the release, unless a clear case of fraud between them and the releasors, to the prejudice of their co-plaintiffs be made out, or unless it be shown that the release was executed by persons who were suing as mere trustees, having no real interest in the subject matter of the action. But so long as a person has shares in such an undertaking, he has an interest which, however small it be, is sufficient to enable him to release an action in which he is a plaintiff'; and the case is quite different from the familiar one of assignor and assignee, in which the courts for the first time interposed in this way. The plaintiff (A.] holds fifty shares in this undertaking, and is, therefore entitled at law to release the claim of the company, subject to his responsibility to his co-partners for so doing. It is not shown upon these affidavits that he ever agreed with the other plaintiffs not to release the action; it is shown, indeed, that he agreed that the demand should be enforced in his name, but that cannot prevent him from executing a release to the defendants

(e) Rawstorne v. Gandell, 15 M. & W. 304; 15 L. J. 291, Ex.
() Ibid. 307, per Pollock, C. B.

GENERAL
RULES.

if he think fit. In the common case of two co-plaintiffs equally interested, if one of them thinks fit, out of pure friendship to the defendant, to release the action, the Court cannot on that account interfere to set the release aside" (g).

But the Court will set aside a release if it be manifestly shown to be fraudulent (h): The fraud, however, must be clearly made out, for “where a co-plaintiff is by law competent to give a release,” and “the Court are called upon to set it aside upon the ground of fraud, the plaintiff applying must make out a very strong case of fraud" (i); and the release certainly cannot be got rid of, unless fraud is manifestly proved (k). It would further seem that the release may be got rid of where the coplaintiff whose name is used has no real interest in the action (1). Such a release, would, however, almost necessarily be fraudulent.

Though the Courts may, apparently, still set the plea of a release aside, the right course is now to state in an equitable replication the grounds on which the release can be objected to (m).

RULE 14.

RULE 14.-One and the same contract, whether it be a simple contract or a contract by deed, cannot be so framed as to give the promisees or cove

Same covenant cannot be both joint and several as regards covenantees.

(g) Rawstorne v. Gandell, 15 M. & W. 307, 308, judgment of Parke, B.

(h) Jones v. Herbert, 7 Taunt. 421.
(i) Ibid., 422, per Curiam.
(k) Philips v. Claggett, 11 M. & W. 84; 12 L. J. 275, Ex.

(1) Ibid. ; Rawstorne v. Gandell, 15 M. & W. 304; 15 L. J. 291, Ex.

(m) De Pothonier v. De Mattos, E. B. & E. 461; 27 L. J. 260, Q. B. See further, as to nominal and real plaintiffs, pp. 69–72, ante.

The cases in which an action on a contract may be brought, either by a principal or agent, constitute, in a sense, an exception to the rule that al the persons must sue with whom a contract is made, see Chapter V.

nantees the right to sue upon it both jointly and separately (n).

GENERAL
RULES,

[ocr errors]

A contract (o) cannot be made so as to entitle several persons under it both jointly and severally. They must be entitled under it either jointly only, or severally only, and must sue accordingly (p).

[ocr errors]
[ocr errors]
[ocr errors]

In other words, a covenant "may be either a joint or

,
several covenant, and it will depend upon the context,
whether it is to be taken as joint or several, but it cannot
be both” (q). For," it is fully established . . . . that one
and the same covenant cannot be made both joint and
several as regards the covenantees" (r).

)
One and the same covenant with A. and B., must
either be a covenant with both of them jointly: i.e., a
covenant with A. and B. collectively, or a covenant with
each of them separately ; i. e., a covenant with A. sepa-
rately, and with B. separately. In the first case, A. and
B. must join in suing for a breach of the covenant.
In the second case, A. must sue separately, and B. sepa-
rately. A several or separate covenant, in fact, with
two or more persons is only two or more separate cove-
nants expressed in a short form.

All the rule lays down is, that what is in law one cove-
nant cannot be, as regards the covenantees, at once joint
and several. It may well be that what would appear to
an ordinary reader but one covenant, is in fact two cove-

(n) Bullen, Pleadings, 3rd ed. 471. Slingsby's Case, 5 Coke, 186; Bradburn v. Botfield, 14 M. & W. 559 ; Keightley v. Watson, 3 Exch. 716, 723.

(0) The cases refer almost wholly to covenants, and, therefore, in con-
sidering this rule reference is made to covenants only. But the rule seems
to apply to all contracts in writing. Compare Pugh v. Stringfield, 3
C. B., N. S., 2; 27 L. J. 34, C. P. ; 4 C. B., N. S., 364; 27 L. J. 225,
C.P. ; Ooston v. Ogle, 13 East, 538. Broom, Parties, 2nd ed., ss. 20, 21 ;
Bullen, Pleadings, 3rd ed., 471.

(p) Bullen, Pleadings, 3rd ed., 471.
(9) Keightley v. Watson, 3 Exch. 726, judgment of Rolfe, B.
(1) Bradburn v. Botfield, 14 M. & W. 573, judgment of Parke, B.

« 이전계속 »