Sec 817

The prevalent opinion at common law is that a contract cannot be so framed as to give the promisees the right to sue on it both jointly and severally.8 The promisees must be held as entitled to sue either jointly only or severally only.9 Obligations of this class, therefore, must be construed to be joint, or joint and several, as the case may be.10 And it has been held Plaintiffs cannot sue both jointly and severally.

1 Pearson V. Barker, 3 N. H. 366; Appleton V. Bascom, 3 Met. 169; Smith V. Hicks, 1 Wend. 206.

2 Appleton V. Bascom, 3 Metc. 169; Clapp V. Rice, 15 Gray, 557; Gould V. Gould, 6 Wend. 263.

3 Lombard V. Cobb, 14 Me. 222.

4 Gresty V. Gibson, L. R. 1 Exch. 112.

5 Owston V. Ogle, 13 East, 538 Brand V. Boulcott, 3 B. & P. 235 Jewell V. Cunard, 3 Wood. & M. 277 Olmstead V. Bailey, 35 Conn. 584.

6 Willoughby V. Willougbby, 5 N. H. 244; Osgood V. Pearsons, 4 Gray, 455; though see Ellis V. McLemoor, 1 Bailey, 13, and Ch. on Pl. 16th Am. ed. (1879), 10.

7 Wh. on EV. sec 949 et seq.; Cross V. Williams, 72 Mo. 577; supra, sec 804.

8 2 Ch. on Cont. 11th Am. ed. 1341; Dicey, ut supra, 111; Bradburne V. Botfield, 14 M. & W. 559, 573; James V. Emery, 8 Taunt. 245; Dob V. Halsey, 16 Johns. 34; Sweigart V. Berk, 8 S. & R. 308.

9 See Pugh V. Stringfield, 3 C. B. N. S. 2; S. C, 4 C. B. N. S. 364; Broom, Parties, 2d ed. sec 20-21; Lush, Practice, 3d ed. 222; Jewell V. Cunard, 3 Wood. & M. 277.

10 Slingsby's case, 5 Co. 19 a; Bradburne V. Botfield, 14 M. & W. 573. This rule is criticized by Rolfe, B., in Keight-ley V. Watson, 3 Ex. 724, saying: "it that the obligation cannot be treated as joint so far as concerns some of the obligors, and several so far as concerns others; it must be regarded as joint as to all, or several as to all.1 But in the same contract there may be two distinct covenants, one joint, and the other several.2.

Sec 818

All the members of a partnership should be plaintiffs in a suit on a debt due the firm;3 nor does it make any difference that the partnership has been dissolved between incurriug the debt and bringing suit.4 The names of dormant partners, not privy to the contract, like the names of undisclosed principals, may be omitted.5 And a partner who is the sole ostensible party to the contract, and exclusively interested in it, can sue on it alone.6

Sec 819

Members of a partnership, or of any business association in general, cannot depute any one person to represent them for the purpose of bringing suit.7 In England this question has arisen from the efforts of unincorporated societies to get rid of the difficulties attending joint suits by appointing a specific person to sue on contracts in which they are interested. Attempts of this kind, however, have failed on the ground "that the proper person to bring an action is the person whose right has been violated."8 This principle has been held to invalidate a suit brought by the managers of an is clear that parties can so contract by separate deeds; why, then, should they not be able to do so by separate covenants in the same deed ?" Gresty V. Gibson, L. R. 1 Exch. 112; see Howe V. Hendley, 25 Me. 116.

All partners should sue.

Qualification as to one of several contractors 6uing as representative.

1 Cabell V. Vaughan, 1 Wms. Saund. 291; Streatfield V. Halliday, 3 T. R. 782; see infra, sec 825 et seq.

2 James V. Emory, 8 Taunt. 245; Duval V. Craig, 2 Wheat. 45; Calvert V. Bradley, 18 How. U. S. 580; Sharp V. Conklin, 16 Vt. 355.

3 Ch. on Pl. 16th Am. ed. 13; Story, Part. sec 241; Collyer, Part. sec 649 et seq.; Halliday V. Doggett, 6 Pick. 359; Hewes V. Bayley, 20 Pick.

96; Gould V. Gould, 6 Wend. 264; Wilson V. Wallace, 8 S. & R. 53.

4 Page V. Wolcott, 15 Gray, 536.

5 Skinner V. Stocks, 4 B. & Ald. 437; Steel V. Western, 7 Moore, 31; Lapham V. Green, 9 Vt. 407; Lord V. Baldwin, 6 Pick. 352; Beach V. Hay-ward, 10 Ohio, 455.

6 Parsons V. Crosby, 5 Esp. 199; Glossop V. Colman, 1 Stark. 21; Davenport V. Rackstrow, 1 C. & P. 89.

7 Parsons V. Crosby, 5 Esp. 199; Barker V. Stubbs, 1 M. & G. 44.

8 Willes, J., Gray V. Pearson, L. R.

5 C. P. 568; see Sweigart V. Berk, 8 S.

& R. 308; Dicey, ut supra, 116.

unincorporated mutual marine insurance company;1 by the purser for the time being of a cost-book company;2 and by the directors of a company.3 Even negotiable paper made to the treasurer for the time being of an unincorporated society is open to the same objection, the reason given being that "the payee' must be a person capable of being ascertained at the time of making the note or accepting the bill."4 It is otherwise, however, when to the actual contracting parties (e.g., the trustees of a particular chapel) is joined the treasurer alternatively, since the treasurer is to be regarded in such case as the agent of the trustees to receive the money.5 There is nothing, also, in this rule which prevents the parties to simple contracts not based on negotiable paper from providing that one of their number shall be empowered to sue for any breach of the contract for the benefit of all but the parties sued.6 This is common in partnership agreements in which it is stipulated that one partner may sue, in the names of all but the delinquent, for whatever may be due from a defaulting partner.7 In equity, however, and in common law courts having equity jurisdiction, any one member, either in his own behalf or on behalf of himself and others, may proceed for an account; and in England " the rules of the supreme court, following the former practice of the court of chancery, now provide that ' where there are numerous persons having the same interest in one action, one or more of such parties may sue or be sued, or may be authorized by the court to defend in such action on behalf or for the benefit of all parties so interested.' "8 The only exception is that a person not really interested cannot be put forward as a representative.9

1 Gray V. Pearson, ut supra.

2 Hybart V. Parker, 4 C. B. N. S. 209.

3 Hall V. Bainbridge, 1 Man. & G. 42; Phelps V. Lyle, 10 A. & E. 113.

4 Pollock, 3d ed. 223, citing Storm V. Stirling, 3 E. & B. 832, under name of Cowie V. Stirling, 6 E. & B. 333; Yates V. Nash, 8 C. B. N. S. 581.

Holmes V. Jacques, L. R. 1 Q. B. 376.

6 See Dicey, ut supra, 116; Hybart V. Parker, 4 C. B. N. S. 209.

7 Radenhurst V. Bates, 3 Bing. 463; Pollock, 3d ed. 221. "Of course," says Mr. Pollock commenting on this case, "they must take care to make the penalty not to the whole firm, but to the members of the firm minus the offending partner.".

8 Pollock, 3d ed. 223.

9 Ibid.