order to see who is really interested, and who has sustained the damages, and whether such damages are joint or several, in order to determine the number of the plaintiffs, and in whom the right of action rests. (c)

66

66

a

An agreement was entered into between the several part owners of a vessel who had separate shares in the ship, and the defendant, whereby the defendant was intrusted with the exclusive management and control of the vessel as ship's husband, for a voyage, and the defendant was to fit out the vessel and supply her with the necessary stores for a voyage, and each of the parties, part owners of the vessel, were to pay the defendant proportion" of the sums he should expend in that behalf, and the defendant promised, after the voyage had been completed, to render a full account of the ship and her concerns, and to divide the neat profits according to the proportions in the said ship;" and it was held, that as the promisees had upon the face of the written contract several interests in the performance of the thing stipulated to be done, and each sustained a separate damage, the promise to account should be moulded according to the several interests of the parties, and be a distinct promise to each in respect of his separate share in the ship, and that any of the part owners consequently might maintain a separate action for the non-render of the account. (d)

If there be a joint retainer and employment of another by divers persons to do one thing for the benefit of all, they have a joint legal interest in the fulfilment of the contract by the party employed, although they may have several beneficial interests, and be possessed of separate shares in the subject matter of the contract. The plaintiff and two other persons, being possessed of separate shares in a ship, jointly employed the defendant to sell the entirety for them; and it was held that the plaintiff could not sue the defendant for his separate share of the purchase-money, for as the employment was to sell the ship in solido as one thing for all, the proceeds became joint property, and nothing less than an express agreement by the defendant, with the consent of all parties, would have enabled the plaintiff to maintain a separate action. But if each had employed the defendant to sell his particular share in the ship, then separate actions might have been brought by each. (e)

Two persons who had become bail for another called together upon an attorney, and employed him to surrender their principal; it was held, that one of them could not afterwards maintain an action against the attor

(c) Place v. Delegal, 6 Sc. 258, 260; 4 Bing. N. C. 432, s. c.

(d) Owston v. Ogle, 13 East, 538.

(e) Hatsall v. Griffith, 2 Cr. & M. 679; 4 Tyr. 487, s. c.

ney for neglecting to effect the render pursuant to his undertaking, as the retainer was a joint retainer, and the law therefore would consider the undertaking to be a joint undertaking to both, upon which both must sue. (f)

In a joint action brought by two persons as plaintiffs, it appeared that their several cattle had been distrained, and that the defendant, in consideration of 107. paid unto him by the plaintiffs, had promised to get the cattle restored to them; and it was objected, that as the cattle were the several property of the two plaintiffs, separate actions should have been brought; but the court held, that as the consideration was joint, and it was not known how much money the one plaintiff had given, and how much the other, the action was well brought by both jointly. (g) Neither did it appear in this case how many cattle the one party had lost and how many the other, the damage, therefore, was a joint damage to both, and compensation was properly sought for in a joint action; but if the damage had appeared upon the face of the contract to be several, as if the promise had been to restore so many beasts to the one and so many to the other, as the separate property of each, then separate actions should have been brought.

If, in consideration of certain services to be rendered by the promisees, a promise is made to pay them a sum of money, this is a joint promise in favour of all, upon which a joint action by all must be brought; and the pointing out the particular share that each is to receive of the sum so promised to be paid will not, in the case of simple contracts, any more than in the case of deeds, create a severance of interest, so as to enable the promisees to maintain separate actions against the promisor, to recover their respective proportions of the entirety. (h) But if one sum in solido is not to be paid in the first instance, and afterwards divided, but separate and independent payments are to be made to each, then separate actions must be brought. Thus, where the defendant promised one Thomas, that in consideration he would surrender a copyhold to the defendant, he, the defendant, would give unto his (Thomas's) two daughters 201. a piece. One of the daughters having brought her action for a breach of this promise, it was moved in arrest of judgment that it was a joint promise to the two daughters, and that the one could not maintain a separate action; but per Glyn, C. J., "the law doth distinguish the interest though the promise be joint. The action is brought for one twenty pound due to one

(f) Hill v. Tucker, 1 Taunt. 7.

(g) Ivans v. Draper, 1 Roll. Abr. 31, pl. 9, 2; Saund. 116, n. a.; Styles, 156, 157, 203.

(h) Byrne v. Fitzhugh, 1 C. M. & R. 597, n. (a.); 5 Tyr. 54, s. c.

of the daughters; the parties have distinct interests, so every one of them may bring the action.” (i)

Implied promises. In all actions upon implied contracts and promises, the number of the plaintiffs, and the joint or separate cause of action, depend entirely upon the nature of the consideration from which the implied promise arises. If that consideration moves from several persons jointly, the law raises a corresponding implied promise in favour of all, upon which all must sue; but if there be several separate considerations moving from the parties separately and individually, the law implies a separate promise in favour of each, and separate actions must be brought. If several persons are employed upon a joint retainer to do certain work, or perform certain services, there is an implied joint promise of remuneration; but if the parties each receive separate retainers, and each contribute a separate portion of the work, and separate services, independently of the rest, the law implies corresponding several promises. (k) Out of one joint retainer, also, may arise one entire duty in favour of all and separate duties to each one of the employers, in respect of which a separate action must be brought; (7) and a retainer originally joint may become several, and give rise to separate causes of action, by reason of the subsequent conduct of the contracting parties. (m)

A carrier being in want of assistance upon the road, engaged two persons separately to aid him with their horses. Each sent three horses, with a carter to attend them, and the six drew the waggon, and they were directed to send in their several accounts. The two brought a joint action for the hire, but it was held not to be maintainable, as they had no joint interest. (n)

Implied promises in respect of MONEY PAID, LENT, or RECEIVED.—If a sum of money in solido is advanced by several persons, the law raises an implied joint promise of repayment in favour of all; but if several sums be advanced separately by each, the law implies a corresponding separate promise in favour of each.

Two out of three joint contractors, against whom judgment had been recovered, borrowed a sum of money upon their joint credit to satisfy the judgment; and it was held that they might maintain a joint action upon the implied promise of contribution against the third; but if each had contributed his share of the money out of his own funds, or had borrowed it on his separate credit, then the law would have implied a separate

-, Styles, 461.

(1) Thomas v.
(k) Bell v. Chaplain, Hardres, 321.
(1) Story v. Richardson, 6 Bing. N. C. 130.

(m) Garrett v. Taylor, 1 Esp. 117.
(n) Smith v. Hunt, 2 Chit. 142,

promise in favour of each, upon which separate actions must have been brought. (o)

Two joint owners of a sum of money, travelling together on the highway, were robbed of the money, and thereupon they brought a joint action against the hundred, when it was objected that they ought to have sued separately; but the court held that they were properly joined, because they were jointly entitled to the damages to be recovered. If, however, there had been several sums of money, the separate property of the parties robbed, then separate actions should have been brought. (p)

A. B. and C., being assignees under a commission of bankruptcy, incurred legal expenses on account of the bankruptcy to the amount of 2081. A. and B. each paid the sum of 1047. in discharge of the solicitor's bill, and brought a joint action against C. upon an implied promise for contribution; when it was held, that they could not sue jointly, but must each bring a separate action, as the law would imply a separate promise in favour of each, in respect of the money which each had paid on account of C.; (q) but if they had borrowed the money so paid on their joint credit, or if an agent had paid it for them on their joint account, then there would have been an implied joint promise to both, upon which a joint action must have been maintained against C. (r)

And although several persons may contribute severally in equal shares towards one entire amount, yet if their several contributions are put together and advanced as one sum in solido, the implied promise of repayment is a joint promise to all in respect of the entire sum so advanced, and not a several promise to each in respect of their several contributions thereto. (s) If several persons contribute their several proportions of a sum of money which is to be paid under a special contract to which they are parties, and the money is advanced as a sum in solido, and the contract is afterwards abandoned or rescinded, the implied promise to refund the money arises in favour of all. (t)

"The Trimmer" privateer, of which the plaintiff and two other persons of the name of Grant were joint owners, took a prize, in conjunction with another privateer, of which the defendant was owner. The prize was condemned and sold, and shared by agreement between them; but afterwards the sentence of condemnation was reversed, and restitution awarded, with costs. The two Grants having become bankrupt, the plaintiffs paid the

(0) Osborne v. Harper, 5 East, 225, 229. Winterstoke Hundred's case, Dyer, 370, a. pl. 59. (q) Brand v. Boulcott, 3 B. & P. 235. Kelby

v. Steel, 5 Esp. N. P. C. 192.

(r) Osborne v. Harper, 5 East, 229.
(s) May v. May, 1 C. & P. 44.
(t) English v. Blundell, 8 C. & P. 332.

whole amount, and then brought their action against the defendant, upon an implied promise from him to pay his moiety of the restitution money, and costs; but it was held that they could not maintain the action, for either the money was paid on a partnership account of the joint owners of the Trimmer, when the two Grants, who had become bankrupt, or their assignees, should have been joined as plaintiffs, or it was a separate payment by each individual of the plaintiffs, when separate actions should have been brought by each. (u)

SECTION III.

OF THE RIGHT OF ACTION OF PARTNERS.

Contracts under SEAL.-As an action upon a contract under seal can only be maintained by the parties with whom the contract is in terms made, it follows, that if a deed be entered into by one or more of several partners on behalf of the co-partnership generally, the action upon such contract must be brought by the partners with whom it was made, and not by the co-partnership in whose behalf it was made.

If upon the face of a simple contract in writing, it appears that the contract has been entered into by, or on behalf of, a firm in partnership, all the members of the firm must sue jointly thereon. (a) If the joint interest and joint consideration are not disclosed upon the face of the writing, but the contract is entered into with one of the partners in his individual capacity, and apparently on his own account, but in reality on behalf of the firm of which he is a member, the partner so contracting stands in the position of an agent dealing on behalf of an undisclosed principal; and either the partner with whom the contract is so made, or the firm, as the parties really interested in it, may bring the action, (b) the defendant being of course entitled in the latter case to set up against the firm any defence that he would have had to an action brought by the one partner alone, as in the case of principal and agent. (c) If a written contract for the sale of

(u) Graham v. Robertson, 2 T. R. 282. It has now been held that the law will raise no implied promise of contribution as between partSadler v. Nixon, 5 B. & Ad. 936. (a) Lewis v. Edwards, 7 M. & W. 300, 305. (b) Alexander v. Barker, 2 Tyr. 147. Beck

ners.

ham v. Drake, 9 M. & W. 96, 98; 11 M. & W. 317, s. c., in error.

(c) Stracey v. Deey, 7 T. R. 361, n.; 2 Esp. 469, n. Gordon v. Ellis, 13 Law J., N. S. C. P. 179.