As the obligation of joint promisors is a single obligation, a single judgment must be given against all the defendants or no judgment in favor of the plaintiff can be rendered.95 Though several joint defendants are allowed the option of severing in their pleas as well as of joining in one plea,96 yet as the cause of action is single, a successful plea in bar by one defendant will prevent the plaintiff from obtaining judgment in the action against any of the defendants;97 and if a joint judgment cannot be supported as to one defendant, it is erroneous as to all.98 So at common law if one of several joint contractors when served with process failed to appear, the plaintiff though he might obtain an interlocutory judgment by default, or issue execution against him, yet if the other defendants appeared and tort-feasors is held in America to be joint and several, the principle finds frequent application in actions against tort-feasors. See Cooley on Torts (3d ed.), 231 el seq; Hunt v. New York Ac. Co., 212 Mass. 102, 98 N. E. 787, 40 L. R. A. (N. S.) 778, Cote v. New England Nav. Co., 213 Mass. 177, 99 N. E. 972; Thoresen v. St. Paul Ac. Lumber Co., 73 Wash. 99, 131 Pac. 645. In England, however, such tort-feasors are liable only jointly, and judgment against one is a bar to an action against the others. Brins-mead v. Harrison, L. R. 7 Q. B. 547.
92Sims v. McNeil, 10 Humph. 500; Simonds v. Center, 6 Mass. 18.
93 See tupra, Sec.324, ad fin.
94 Winn v. Kansas City Belt Ry. Co., 245 Mo. 206, 151 S. W. 98 (tort).
95 Sharpe v. Baker, 51 Ind. App. 547, 99 N. E. 44; Wagenaar v Beeman Woodward Co., 65 Ore. 109, 131 Pac 1023; Templeton v. Morrison, 66 Ore. 493, 131 Pac. 319. Otherwise by statute in California. Code Civ. Proc. Sec. 578; Sham v. Forbes, 82 Cal. 577, 23 Pac 198.
96Chitty on Pleading (6th Eng. Ed.), 565.
97 Minor v. Mechanics' Bank, 1 Pet. 46, 7 L. Ed. 47; Woodward v. Newhall, 1 Pick. 500; Taylor v. Beck, 3 Rand. 316; Brown's Adm. v. Johnson, 13 Gratt. 644, 650.
98 Samonski v. Chicago City Ry. Co., 156 11l. App. 297.
pleaded, the pleas of the latter defendants would inure to the benefit of all; so that if the issues raised by these pleas were found in favor of the defendants who set them up, the plaintiff could not retain his judgment against the defaulting defendant.99 On the other hand, if the defendants who pleaded failed on the issues raised by their pleas, judgment went against all the defendants jointly.1 The necessity of a joint judgment is also shown by the rule of the Federal courts that though one of several defendants sued on a joint contract in a State court is a non-resident of the State and files a separate answer, he cannot remove the litigation against him to the Federal court.2 A few apparent exceptions, however, exist to the rule that the judgment must be given against all or none. Thus, if one of the joint obligors has become bankrupt, his discharge in bankruptcy being a personal defence to his liability, but not tending to show the non-existence of the plaintiff's joint right, may be pleaded by him separately, and the plaintiff may enter a nolle prosequi against him and obtain judgment against the other defendants.3 Even in such a case, however, it was necessary in England to join the discharged bankrupt,4 until the rule was changed by Statute,5 and some authorities in the United
99Boulter p. Ford, I Sid. 76; Porter v. Harris, 1 Lev. 63; Morgan v. Edwards, 6 Taunt. 395, 398.
1 The Common Law Procedure Act, 15 and 16 Vict., c. 76, a. 33, allowed the plaintiff if his claim was liquidated to sign judgment against the defaulting defendant and issue execution; but should the plaintiff adopt this course he was held to abandon his right against the other defendants. As an alternative the plaintiff might proceed in the same way as before the passage of the act. Under the English Judicature Act Order XIII, rule 4, the plaintiff may take final judgment against the defaulting defendant without prejudice to his right to proceed with the action against those defendants who have appeared.
2 Louisville etc. R. Co. v. Ide, 114 U. S. 52,29 L. Ed. 63,5 S. Ct. Rep. 735.
3 Under the early authorities it was questioned whether a nolle prosequi did not operate as a total discharge of the defendant as to whom it was entered and, therefore, preclude the plaintiff from obtaining judgment against other joint obligors. But the later view regarded the nolle prosequi as not discharging the defendant against whom it was entered, but merely staying proceedings as to him. See Wms. Saunders, 207 n. Sec. 16 of the United States Bankruptcy Act of 1898 expressly provides that discharge of one co-debtor in bankruptcy shall not discharge the others. 4Noke v. Ingham, 3 Esp. 77, n,
1 Wils. 89 s. c; Hawkins v. Rams-bottom, 6 Taunt. 179; Bovill v. Wood,
2 M. & Sel. 23; Moravia v. Hunter, 2 M. & Sel. 444. See also Ex parte Read, 1 Ves. A B. 346, a. c. 1 Rose, 460.
5 3 and 4 Win. IV.&. 42, Sec. 9.
States have followed the old English rule.6 But others, without the aid of a statute, follow the modern English law and sustain an action in which the discharged bankrupt is not joined.7 As there seems no objection to joining the discharged bankrupt even where the joinder is not required, the safer course, in case of doubt, is to do so.
Similarly one joint obligor may have and may plead the personal defense of the Statute of Limitations, though other defendants do not.8 Judgment may be rendered then in favor of such defendants as are entitled to set up the Statute, and against those who have not this personal defence.9
If a joint debtor is an infant, his infancy also may be pleaded successfully by him and yet judgment may be rendered against the other joint debtors.10 In several early cases in England 11 the contrary was held, but this was because the promise of an infant was then considered void, and hence it followed that no joint contract was ever entered into by the infant. And if two persons purport to enter into a joint contract but for any reason as, for instance, coverture at common law, no legal obligation arises so far as one of them is concerned, a plaintiff who sued them both jointly, at common law was nonsuited. He was obliged to begin a fresh action omitting the parties eroneously joined, and could not avoid the objection by entering a nolle prosequi as to such parties as should not have been joined.12 Under modern statutes and practice doubtless everywhere the plaintiff could now discontinue as to defendants improperly joined 13 but it should be observed that in this case the defendant never was a joint obligor; it is not a case where a joint obligor may plead a separate defence.
6 Jenks v. Opp, 43 Ind. 108; Camp v. Gifford, 7 Hill, 169; Roberta v. McLean, 16 Vt. 608, 42 Am. Dec. 529.
7 Belden c. Curtis, 48 Conn. 32; Tinkum v. O'Neale, 5 Nev. 93, 97.
8 This is likely to occur when one or more of the.joint obligors have been absent from the State and the statutory period has therefore not run against them though it has run against such obligors as remained within the State. See infra, Sec. 2010.
9Spaulding v. Ludlow Woolen Mill, 36 Vt. 150. See also Towns v. Mead, 16 C. B. 123, 129; Robertson v. Stuhl-miuer, 93 Iowa, 326,329, 61 N. W. 896;
Bruce v. Flagg, 25 N. J. L. 219; Cutler v. Wright, 22 N. Y. 472, 476.
10Cutts v. Gordon, 13 Mc. 474, 29 Am. Dec. 520; Latrobe v. Dietrich, 114 Md. 8, 78 Atl. 983; Woodward v. Newhall, 1 Pick. 500; Cole v. Manners, 76 Neb. 454, 107 N. W. 777; Hartnesa v. Thompson, 5 Johns. 160.
11Chandler v. Parkes, 3 Esp. 76; Jaffray v. Frebain, 5 Esp. 47; Gibbe v. Merrill, 3 Taunt. 307. See also Burgess d. Merrill, 4 Taunt. 468.
12 Viner's Abr. Action D. d. Pl. 8; Redington v. Farrar, 5 Greenl. 379; Cutts v. Gordon, 13 Me. 474, 478, 29 Am. Deo. 530.
At common law there was no adequate redress where a joint debtor was absent from England. " In that case, the plaintiff knows that he has a cause of action, and he would know upon inquiry that the defendant was not to be found in [England]. Still, however, he was not without remedy: he might issue his writ, and continue it by alias and pluries, and so forth, until the defendant's return, or he might proceed to outlawry against him." 14
In the United States without the aid of statute, it has generally been held that an action may be enforced against such of the joint debtors as are within the jurisdiction of the court, disregarding those who are not;15 and by statute in some States the right to proceed to judgment against such joint defendants as have been served with process applies to cases where those not served are resident within the jurisdiction.16
It is a natural consequence of the rule that judgments for breach of joint duties must be joint, that individual indebtedness due from one of several joint obligors cannot be set off by the defendant against the joint right in an action by the obligees;17 nor can a joint indebtedness be set off against an individual right of one of the joint debtors.18
13See, e, g., East v. McClung, 49 Col. 502,113 Pac. 517; Fairchild v. Llewellyn Realty Co., 82 N. J. L. 423, 82 Atl. 924; Alaska Banking, etc., Co. v. Van Wyck, 130 N. Y. S. 563; McKane v. Gordon, 85 Vt. 253, 81 Atl. 637.
14Towns v. Mead, 16 C. B. 123, 135. As to the process of outlawry, see 3 Bl. Comm. 283.
15 Wiley v. Sledge, 8 Ga. 532; Mem-man v. Barker, 121 Ind. 74, 22 N. E. 992; Cox v. Maddux, 72 Ind. 206; Rand v. Nutter, 56 Me. 339; Dennett v. Chick, 2 Me. 191, 11 Am. Dee. 59; Wiley v. Holmes, 28 Mo. 286, 75 Am. Dec. 126; McEIroy v. Ford, 81 Mo. App. 500; Olcott v. Little, 9 N. H. 259, 32 Am. Dec. 357; Blessing v. McLinden,
81 N. J. L. 379, 79 Atl. 347; Brown v. Birdsall, 29 Barb. 549.
16Ostrander v. Blandin, 211 Fed. 733 (N. Y.); Reeves v. Mercer, 155 111. App. 57; Connor v. Tailor, 33 Okl. 733, 127 Pac. 1069.
17 Bauer Cooperage Co. v. Ewell, 149 Ky. 838, 149 S. W. 1137.
18 Sutton v. Hurley, 12 Ga. App. 312, 77 S. E. 218; Mintz v. Tri-County Natural Gas Co., 259 Pa. 477, 103 Atl. 285. But where several defendants are sued jointly, they may set off a. claim held by one of them individually against the plaintiff, since the defendants have the right to agree among themselves as to the adjusts ment of the proceeds of the set-off.