Sec 822

An unamended non-joinder of a plaintiff who ought to be joined, if it appears on the pleadings, is fatal on demurrer;2 if it appears on trial, and is not amended, is ground for a nonsuit, or for a verdict for the defendant.3 Under the English statutes, now in substance adopted in most jurisdictions in this country, the defect of non-joinder of plaintiffs can be cured before or during trial.4 At common law, in arrest of judgment or in error, such non-joinder, if material, and if apparent on the record, will be fatal.5

Sec 823

"What has been said of non-joinder applies to misjoinder, when such misjoinder affects the cause of action. But in England, when an action is "brought by A. and B., which should be brought by B. alone, judgment (under the common law procedure act, and under similar statutes in this country) may be given in favor of such one (or more) of them as are entitled to recover. But the defendant, though unsuccessful, is entitled to any costs occasioned by the misjoinder."6

Nonjoinder of plaintiff, unless amended, is fatal.

Unamended misjoinder of plaintiffs is fatal if inconsistent with cause of action.

Livingston, 15 Johns. 479; Murray V. Blatchford, 1 Wend. 583; Smith V. Stone, 4 Gill & J. 310.

1 Leake, 2d ed. 933; Piercy V. Fyn-ney, L. R. 12 Eq. 69.

2 Ch. on PL 16th Am. ed. 15; Debolt V. Carter, 31 Ind. 355.

3 Dicey on Parties, Am. ed. 1879, 502; Leake, 2d ed. 453; Chanter V. Leese, 4 M. & W. 295; Baker V. Jewell, 6 Mass. 460; Beach V. Hotchkiss, 2 Conn. 697; Ehle V. Purdy, 6 Wend. 629; Waldsmith V. Waldsmith, 2 Ohio, 156.

4 Wickens V. Steel, 2 C. B. N. S. 488; Robson V. Doyle, 3 E. & B. 396; Wilkin V. Reed, 15 C. B. 192.

5 Ch. on Pl. 16th Am. ed. 15; 1 Saund. 154, note (1); Snelgrove V. Hunt, 2 Stark. 374; Wiggin V. Cummings, 8 Allen, 353; Wright V. Post, 3 Conn. 142; Ziele V. Campbell, 2 John. Ca. 384; Wilson V. Wallace, 8 S. & R. 53. Aliter by statute. Lewis V. McNatt, 65 N. C. 63.

6 Dicey on Parties (Am. ed. of 1879), 504, citing Bremner V. Hull, L. R. 1 C. P. 748; see Lillard V. Ruckers, 9 Yerg. 64. In Whiting V. Cook, 8 Allen, 63, it was held that it was error requiring reversal to enter a joint judgment for a sum of money bequeathed to be equally divided between plaintiffs.

2. Defendants.

Sec 824

Joint promisors or contractors must be sued jointly, the rule being that where several persons are jointly liable on a contract, they must all be sued in an action for the breach thereof;1 and this, though the promisors agree among themselves that the duty is to be performed by one of them exclusively.2 The rule, however, does not apply where a co-debtor lives out of the jurisdiction;3 or where he is not capax negotii;4 or where he is relieved by the statute of limitations.5

Sec 825

"If A. and B. covenant jointly and "severally, the covenant may be joint or several, and the covenantors may be sued either altogether, or all of them apart, at the election of the covenantee."6 A joint and several promissory note, therefore, may be treated either as a joint note, or as a series of as many separate notes as there are distinct joint and several makers.7 Hence every joint and several debt includes a joint debt, and as many several debts as there are debtors. When the debt is several as well as joint, the plaintiff is at liberty to proceed against the parties jointly, or each separately, though their interest be joint.8

Joint defendants must be sued jointly Debts may be joint or several.

1 Dicey, ut supra, 230; Ch. on PL 16th Am. ed. 48; 1 Wms. Saund. 291; Platt on CoV. 117; Beggs V. Butler, 9 Paige, 226; Pollard V. Collier, 8 Ohio, 43; McCall V. Price, 1 McCord, 82. As to mode of objecting to non-joinder see infra, sec 833.

2 Lodge V. Dicas, 3 B. & Ald. 611. See on this point supra, sec 808.

3 Joll V. Curzon, 4 C. B. 249.

4 See Boyle V. Webster, 17 Q. B. 950.

5 Boydell V. Drummond, 2 Camp. 157.

6 Leake, 2d ed. 454, citing Shepp. Touch. by Preston, 166, 180; Fletcher V. Dyche, 2 T. R. 32; see Hemmenway V. Stone, 7 Mass. 58; Peckham V. North Parish, 16 Pick. 274; Ernst V. Bartle, 1 John. Ca. 319; McCready V. Freedley, 3 Rawle, 251; Knisely V. Shen-berger, 7 Watts, 193.

7 Beecham V. Smith, E. B. & E. 442; Owen V. Wilkinson, 5 C. B. N. S. 526.

8 Ch. on PL 16th Am. ed. 51; 2 Ch. Cont. 11th Am. ed. 1355; 1 Saund. 153, note (1). In Massachusetts persons severally liable upon contracts in writing including all parties to negotiable paper, may be joined in the same cause of action. See Wallis V. Carpenter, 13 Allen, 19; Costigan V. Lunt, 104 Mass. 217.

"Each party to a joint contract is severally liable in one sense, i. e, if sued severally and he does not plead in abatement, he is liable to pay the entire debt; but he is not severally liable in the same sense as he is on a joint and several bond, which instrument, though on one piece of parchment or paper, in effect composes the joint bond of all and the several bonds of each of the obligors." - Parke, B., in King V. Hoare, 13 M. & W. 505.