due to him on the general account with his principal, he has a right to require payment of the price to the extent of such general balance to himself, and not to the principal. The contract is in such cases the contract of the factor, although the principal has been named; and if the buyer, after notice from the factor of his claim on the price of the goods, should, in defiance thereof, settle with the principal, such settlement will constitute no defence to an action by the factor, for the latter has a prior right, (h) and the buyer cannot set off a debt due to him from the principal against the claim of the factor.

An auctioneer has a special property in goods which he is employed to sell, with a lien for the charges of the sale, the commission, and the auction duty, which he is bound to pay; he may, therefore, maintain an action against a buyer for the price of goods sold by him, although the sale was at the house of the principal, and the goods were publicly known to be the property of the latter. (i) But in these cases, if goods be sold, to be paid for at a future period, and be delivered to the buyer, without notice from the agent that he has any lien or claim on the price for duty, commission upon selling, or the like, and the buyer, in the absence of such notice, settles with the principal, then the agent's right of action is destroyed. (k)

A policy broker who effects a policy of insurance in his own name, as agent, at the same time declaring for whose use, benefit or interest, the same is made, is entitled to an action on the policy, (7) inasmuch as, by the usage of trade, he has a lien upon it for the premium which is generally paid by the broker, his commission, and the general balance due to him on the account between himself and his principal. (m)

And when an agent has entered into a contract of sale for an unnamed and unknown principal, it is no defence to an action brought by the agent upon that contract, to say that the principal afterwards repudiated it. The plaintiffs having applied to the defendant to sell them some oil, the latter at first refused, but on being informed that they were purchasing as brokers for a third party, he then assented. Bought and sold notes were made out and exchanged, in which notes the plaintiffs were described as the purchasers, and the defendant as the seller. The plaintiffs afterwards, under a general authority from their principal, and before the oil was delivered, sold the goods on the principal's account to Messrs. Buck and

(h) Drinkwater v. Goodwin, Cowp. 255. Hudson v. Granger, 5 B. & Ald. 31; Bull, N. P. 130.

(i) Williams v. Millington, 1 H. Bl. 81. (k) Coppin v. Walker, 7 Taunt, 242; 2 Marsh, 497, s. c.

(1) Wolf v. Horncastle, 1 B. & P. 316, id. 346. n. (b.) Park on insurance, p. 605.

(m) Whitehead v. Vaughan, Cooke Bank. L. 576. Parker v. Carter, id. 578. Man v. Shiffner, 2 East, 529. Mann v. Forrester, 4 Camp. 60.

Co., but the bought and sold notes described the plaintiffs as the sellers. The principal, hearing of the latter contract, told the plaintiffs that he would have nothing to do with the oil, either as buyer or seller, and in this they acquiesced. The defendant afterwards refused to deliver the oil, and the plaintiffs being unable to fulfil their engagement with Buck and Co., were obliged to pay them a sum of money in satisfaction, the price of the article having risen in the market, and they then brought their action against the defendant, to recover compensation for the damage they had sustained by reason of the non-delivery of the oil, and it was held that the renunciation of the contract by the principal formed no objection to their right to recover. (n)

When a man has assigned to himself the character of an agent to another, whom he names as his principal, the law will not permit him to shift his situation, and to declare himself the principal, and the other a mere creature of straw, without giving to the defendant previous notice of the real situation in which he claims to stand. Having misled the defendant by assuming a character and situation which did not belong to him, he is bound to undeceive the defendant before bringing an action (0)

(n) Short v. Spackman, 2 B. & Ad. 962.
(o) Bickerton v. Burrell, 5 M. & S. 383.

Ellenborough, C. J.

266

CHAPTER X.

OF JOINT AND SEPARATE RIGHTS OF ACTION

EX CONTRACTU.

SECTION I.-Deeds-The right of action regulated by the interests of the parties as disclosed upon the face of the deed and not by the terms of the covenant-A man cannot be divers times charged with the performance of one and the same duty-When one duty arises to all the covenantees, and all must sue; and when separate duties accrue to each, and separate actions must be brought -A joint damage to all creates a joint cause of action, and a several damage to each a separate right of action-A covenant with divers persons to pay them a sum of money is a joint covenant to all, and the specification of the share of each in the entire amount does not create a separation of interest—A covenant to pay distinct sums to each is a separate covenant, and separate actions must be brought Separate covenants in one deed with divers persons to pay one sum in solido to one of them create a joint cause of action, and the party who is to receive the money cannot alone sue-Implied covenants moulded according to the interests of the parties being joint when the interest is joint, and separate when the interest is several-Tenants in common-Joint tenants and parceners.

SECTION II.—Simple contracts—Joint and several interests and joint and separate rights of action -Joint retainers and joint services by divers parties-Several retainers and separate employments -Promises moulded to suit the interests of the parties-Implied contracts and promises follow the consideration upon which they rest-A joint consideration moving from several persons creates a joint cause of action and a separate consideration moving from each a separate right of action.

SECTION III.-Partnership contracts-Of the right of action of partners upon deeds and simple contracts—If one partner contracts by deed on behalf of the rest he alone must sue-If the partnership is disclosed on the face of a simple contract the action must be a joint action by all the members of the firm-If the partner contracts in his individual character, not naming the partnership either the one partner or the firm may sue-When bills of exchange and promissory notes are made payable to one partner on behalf of the firm, the payee must sue-Contracts with firms by their trading name-Effect of changes in the members of the firm-Implied promises to firms in partnership-The implied contract follows the consideration; if it moves from the partnership all the partners must sue; if it moves from one partner alone he must bring a separate action-Of the joinder of nominal and dormant partners-Covenants and simple contracts by partners inter se -No implied promises between partners, except in respect of an account stated, and an ascertained balance.

SECTION IV. Of survivorship amongst joint contractors, and of the right of action of particular

associations-Joint-stock companies and co-partnerships under the management of trustees or directors, or having the right of action vested in a secretary or public officer-CorporationsIncorporated joint-stock, companies-Rights of corporators inter se-Parish officers and guardians of unions.

SECTION I.

OF JOINT AND SEPARATE RIGHTS OF ACTION UPON DEEDS INTER PARTES.

The joint or separate right of action upon a DEED inter partes is regulated by the interest of the covenantees in the subject matter of the contract, and the performance of the thing covenanted to be done, and not by the particular terms or language of the covenant itself. "The unqualified rule of law is, that the action shall follow the nature of the interest as disclosed on the face of the deed, without regard to the precise form of the covenant, so that the action must be joint where the interest in the subject matter of the contract is a joint interest, and several where the interest of each covenantee is a several interest.” (a)

If the parties to a deed inter partes take a joint estate under the deed, and a covenant affecting the enjoyment of that estate is entered into with them and "each of them," the covenant is a joint covenant, and the action upon it must be brought by all the covenantees jointly, because they have a joint interest in the performance of the thing covenanted to be done, and the damage resulting from its non-performance is a joint damage, which is entire and indivisible, and cannot be apportioned. If, on the other hand, the covenantees have separate estates and interests, then a separate duty arises to each in respect of their several estates, and separate actions must be brought. If, for example, an estate be granted to three persons jointly, and covenants for title are entered into with them and "each of them," the covenants are joint, because they have a joint estate, and the words with each of them are mere words of amplification. If, on the other hand, they take separate and distinct estates, and the covenant be in terms joint, they shall have separate actions by reason of their several interests. (b)

If a covenant to do a particular act be entered into with several persons generally, as "with A., B., and C.," they have all primâ facie a joint interest in the performance of it, and the one cannot maintain an action without the others, for the law will not permit a defendant to be harassed

(a) Mills v. Ladbroke, 13 Law J., N.S., C. P.

125.

(b) Slingsby's case, 5 Co. 18 B. Windham's ib. 7 b. James v. Emery, 8 Taunt. 245;

case,

2 Moore, 195, s. c.; 5 Pr. 529. Foley v. Addenbrooke, 4 Ad. & E., N. S. 207, 208. Hopkinson v. Lee, 14 Law J., N. S. (Q. B.) 103.

with several suits in respect of one and the same cause of action; and if only one of them was allowed to recover, the courts would be at a loss for which to give judgment; but if it appears upon the face of the deed that the parties have several interests in the performance of the thing covenanted to be done, and that they each sustain a separate and independent damage by reason of its non-performance, they must bring separate actions; for though the words" (with A., B., and C.,) “be primâ facie joint, they will be construed to be several, if the interest of each of the parties appearing upon the face of the deed shall require that construction." But the severalty of interest must be disclosed upon the face of the deed, and there must be a manifest intention that a separate and distinct duty should arise to each one of the covenantees in respect of the thing covenanted to be done, to warrant the interpretation of the covenant as a several covenant; and if within "the four corners of the deed" there is no distinct appearance of such severalty of interest, the covenant must be construed as a joint covenant, and a joint action by all the covenantees must be brought upon it. (c)

If, for example, a covenant is entered into with divers persons to keep a certain sea wall in repair, this is, primâ facie, a joint covenant; but if it appears upon the face of the deed that the covenantees are so many separate landowners, possessed of distinct and separate estates, the covenant shall be construed to be a several covenant, by reason of their several interests, and if the covenantor neglects to repair the sea wall, whereby the several lands of many of the covenantees are inundated, each of the parties injured must bring a separate action in respect of the particular damage sustained by each. In such a case, "the covenant shall be moulded," says Lord Coke, "according to the several interests of the parties, and each shall recover for a breach so far only as his own interest extends."

Certain articles of agreement were entered into between the master and the several part owners of a vessel who should execute the articles, and their several and respective executors, &c., to pay to them a certain sum of money, to be received for the hire of the vessel, in such parts and proportions as were set against their several and respective names, which "parts and proportions" were regulated according to their several shares in the ship; and it was held, that the interests of the parties being several, a joint action brought against the master by all of them could not be maintained, but that each one of the covenantees must sue severally in respect of his separate interest and estate. (d)

(c) Sorsbie v. Park, 12 M. & W. 156-158. Hopkinson v. Lee, 14 Law J., N. S. (Q. B.) 103.

(d) Servante v. James, 10 B. & C. 410; 5 M. & R. 299, s. c.