Bishop a. Edmiston.

ment of a separate debt of McLauchlin: that the Edmistons well knew that the plaintiffs were entitled to one half of said moneys so collected in the proportion of their respective interests in the vessel; and that the application of the amounts collected to the payment of the separate indebtedness of McLauchlin was a fraud upon the plaintiffs.

The complaint further charged that this application of the amount collected was made in fraud of the rights of the plaintiffs, and by collusion between the defendants, or by the connivance of McLauchlin in the fraudulent action of the Edmistons.

The complaint claimed judgment for an accounting by the Edmistons; that they be charged with the moneys lost by their negligence; and that they pay to the plaintiffs a share of the amount of the insurance moneys proportionate to plaintiffs' interest in the brig.

The defendants Edmiston demurred to this complaint, on the ground, among others, that there was a defect of parties plaintiff, in that all the persons in whose behalf the moneys were alleged to have been received were not parties plaintiff, and no reason given for omitting to make all such parties plaintiff, and because the plaintiffs were improperly joined.

Young & Ruthven, for the plaintiffs.

John Townshend, for the defendants Edmiston.-I. The complaint shows only for money received, for negligence and for taking notes in settlement of insurance instead of money. Nothing is shown why the plaintiffs cannot recover all they claim by a common-law remedy. The complaint does not show any mutual accounting, or any complication or inability to ascertain the amounts received by defendants Edmiston. (Porter a. Spencer, 2 Johns. Ch., 169; Willard's Eq. Juris., 92; Heywood a. City of Buffalo, 14 N. Y., 534; Mitford's Eq. Pl., 145 [123], 6 amended ed., 144; Cummings a. White, 4 Blackf., 356; S. P., 10 Yerg., 179.) 1. The allegation that plaintiffs are wholly remediless being inconsistent with the facts stated, amounts to nothing. (Jones a. Phoenix Bank, 8 N. Y., 228.) 2. Discovery, which was the chief reason for entertaining bills for account, is not now to be had otherwise than as prescribed by the Code and rules of court. The plaintiffs might have

Bishop a. Edmiston.

compelled the production of defendants' books to enable them to prepare their complaint (Code, § 388; Supreme Ct. Rule, 14); or the defendants might have been examined. (Code, § 391.)

II. Causes of action for money received, and for negligence, cannot be joined. (Hunter a. Powell, 15 How. Pr., 221.)

III. All the owners should have joined as plaintiff's-not on account of any joint-ownership of the vessel or of the money, but because the employment of Edinistons was the joint employment of all the owners. (Hill a. Tucker, 1 Taunt., 7.) That McLauchlin had received his portion made no difference. (Code, § 119; Jones a. Felch, 3 Bosw., 63.) It was so before the Code. (Petrie a. Berry, 3 B. & Cres., 353; Anderson a. Hillier, 10 Eng. L. & Eq., 495; Hatsall a. Griffith, 4 Tyrw., 488; Hills a. Gibbs, 5 Hill, 56.) 1. The transaction between Edmistons and McLauchlin in no wise affected their joint liability to plaintiffs and McLauchlin. (Evernghim a. Ensworth, 7 Wend., 326.) 2. Plaintiffs' whole case rests on the assumption that they are not bound by what took place between Edmistons and MeLauchlin, and it is admitted by the demurrer. 3. The transaction between Edmistons and McLauchlin did not confer on McLauchlin any interest adverse to the plaintiffs. 4. If plaintiffs and McLauchlin had sued simply for money received, and defendants had pleaded payment, and then proved a state of facts as alleged in the complaint, their plea would have failed for not showing the assent of the plaintiff's. (Kenneys a. Richards, 11 Barb., 312.)

IV. No reason is assigned for not joining McLauchlin as plaintiff. It should be alleged that he refused to join as plaintiff. Such an allegation is traversable. If found for defendant, it defeats plaintiff's action. (Smith a. Pincourt, 10 Eng. L. & Eq., 50; Code, § 119.) It is like the excuse for profert, which was always traversable. (Rees a. Overbaugh, 6 Cow., 746.)

V. If the employment was several, and not joint, each owner should have sued separately; either each should sue separately, or all jointly. (Graham a. Robertson, 2 T. R., 282; Smith a. Hunt, 2 Chit., 142.)

VI. If by reason of what is alleged to have taken place between the defendants in reference to the moneys received by Edmistons, the two owners, plaintiffs, can sue alone for the money received, that reason would not apply to the negligence

in not collecting.

Bishop a. Edmiston.

As to that cause of action, all the owners should have joined (Hill a. Tucker, 1 Taunt., 7); nor could the same reason apply to the cause of action for taking notes instead of money, which is alleged to have been done "without the authority or assent thereto" of plaintiffs or McLauchlin. Thence it follows that two causes of action are improperly united, namely, a cause of action in two owners, with a cause of action in three owners. This cannot be done. (Code, § 167; Enos a. Thomas, 4 How. Pr., 48.)

LEONARD, J.-The owners of the vessel were parties united in interest, within the meaning of section 119 of the Code, and should join in the prosecution of a demand growing out of such ownership.

The plaintiffs not having taken the requisite steps, under the section above referred to, cannot make one of the part-owners of the vessel a party defendant, and omit to join him as a party plaintiff with themselves.

The excuse stated in the complaint for not uniting McLauchlin (who was a part-owner) as a party plaintiff, and for making him a defendant with John and James Edmiston, was not sufficient, inasmuch as it will constitute no defence to an action brought in the names of all the part-owners against the said John and James, that they have charged the money collected by them against a demand in their favor against one of the part-owners with his consent. (Evernghim a. Ensworth, 7

Wend., 326.)

McLauchlin had no interest, in a legal sense, against the other part-owners.

If the Edmistons kept the money on account of their demands against him, or if he converted the shares of the other owners in the money in question, he would be liable therefor to the other part-owners.

If, by his own act, McLauchlin diverted the shares of these plaintiffs in the money in question to the payment of his individual debt to Edmistons, he was liable to the plaintiffs to the same extent. There might be an interest in the question adverse to the plaintiffs; but there was no legal interest of an adverse nature that would make it necessary that McLauchlin should be made a party defendant.

Forrest a. The Mayor, &c., of New York.

Judgment must, therefore, be rendered for the defendants John and James Edmiston on the demurrer, unless the plaintiff's amend their complaint in twenty days (which they have leave to do), and pay the costs of the demurrer.

FORREST a. THE MAYOR, &c., OF NEW YORK.

Supreme Court, First District; Special Term, October, 1861. AVERMENT OF REPRESENTATIVE CAPACITY.-RIGHT TO RECOVER MONEY VOLUNTARILY PAID.

An averment in the complaint, that the plaintiffs "have been duly appointed and qualified, by the surrogate of the county of New York, to act as the sole executors of A. B., deceased," is not sufficient, in an action to recover a demand due to the estate of the plaintiffs' testator.

Where there is no legal compulsion, a party yielding to the assertion of an adverse claim cannot detract from the force of his concession, by saying, I object, or I protest, at the same time that he actually pays the claim. The payment nullifies the protest as effectually as it obviates the previous denial and contestation of the claim.

Money, voluntarily paid, upon a claim of right, without mistake or ignorance of the facts, cannot be recovered back.

Demurrer to the complaint.

The complaint in this action, omitting the formal parts, was as follows:

"The above plaintiffs allege that they have been duly appointed and qualified, by the surrogate of the county of New York, to act as the sole executors of Daniel Fanshaw, deceased. The above executors, complaining, show to this court, that the said Daniel Fanshaw, in his lifetime, in the year 1857, was assessed in the sum of $420.13, for constructing a sewer on the Third Avenue of said city, between 79th and 84th or 86th street; said assessments being on lots known by Ward Nos. 1, 2, 3; and said assessments, on application made by said Fanshaw to Justice T. Clerke, of the Supreme Court, were set aside for fraud

Forrest a. The Mayor, &c., of New York.

and illegality, under the statute made for the purpose of such applications, and the liens on said lots ordered to be cancelled, by an order duly made, entered on the 16th of December, 1859; and your complainants show, that before getting said assessments and liens set aside, the said Fanshaw, on compulsion, and in order to use his said lots, and under protest, paid said defendants said sum of $420.13, on the 14th day of July, 1858, with twelve per cent. interest to said date, amounting to $439.97; and said Fanshaw, after obtaining said order, duly served the same on the 27th December, 1859, on said defendants, and required the repayment of said sum; and, in writing, on said day, required the comptroller of the said city to repay said sum; and said comptroller, in writing, on or about the 14th day of July, 1860, declined to pay said sum, and waived any further application for the same, except by a suit for the same; and said defendants having neglected to pay said sum, your complainants demand judgment against said defendants for the sum of $439.97, with interest from the 14th day of July, 1858, besides costs."

To this complaint the defendants demurred, on the grounds: 1. That the complaint did not state facts sufficient to constitute a cause of action against these defendants. 2. That it did not appear by the complaint that twenty days had elapsed since the claim upon which the action was founded had been presented to the comptroller of the city of New York for adjustment. 3. That it did not appear by the complaint that a second demand, in writing, had been made upon the comptroller, after the expiration of twenty days; and that the comptroller had neglected, or refused to make an adjustment or payment thereof. 4. That the plaintiffs had not legal capacity to sue.

Joseph H. Patten, for plaintiffs.-I. A demurrer in the words of section 144, subd. 6, of the Code, is not a sufficient demurrer. If this were so intended by the Code, section 145 would never have been enacted; that section requires the demurrer "to distinctly specify the grounds of objection to the complaint"— section 144 only points out the cases where a party may demur; but section 145 points out how they must demur.

II. The complaint avers that the plaintiffs have been duly appointed, by the surrogate of New York, executors of Daniel Fanshaw; and the complaint then shows fully that the demand