may claim under different rights if they possess an interest centring in the point in issue; 4 Cow. 682.

Bills for discovery need not contain all the parties interested as defendants; 1 M'Cord, Ch. 301; and a person may be joined merely as defendant in such bill; 3 Ala. 214. A person should not be joined as a party to such bill who may be called as a witness on trial; 13 Ill. 212; 3 Barb. Ch. 482. And see 1 Chandl. 286.

Assignor and assignee. An assignor who retains even the slightest interest in the subject-matter must be made a party; 2 Dev. & B. Eq. 395; 1 Green, Ch. 347; 2 Paige, Ch. 289; 11 Cush. 111: as a covenantee in a suit by a remote assignee; 1 Dana, 585; and the original plaintiff in a creditor's bill by the assignee of a judgment; 4 B. Monr. 594.

A fraudulent assignee need not be joined in a bill by a creditor to obtain satisfaction out of a fund so transferred; 1 Paige, Ch. 637. The assignee of a judgment must be a party in a suit to stay proceedings; 11 Paige, Ch. 438. A party who acquires his interest pendente lite cannot be made a party; 5 Ill. 354. Otherwise of an assignee in insolvency, who must be made a party; 3 Johns. 543; 1 Johns. Ch. 339; 10 Paige, Ch. 20.

Corporations and associations. A corporation charged with a duty should be joined with the trustees it has appointed, in a suit for a breach; 1 Gray, 399; 7 Paige, Ch. 281. Where the legal title is in part of the members of an association, no others need be joined; 1 Gilm. 187.

Officers and agents may be made parties merely for purposes of discovery; 9 Paige,

Ch. 188.

Creditors who have repudiated an assignment and pursued their remedy at law are properly made parties to a bill brought by the others against the trustee for an account and the enforcement of the trust; 3 Wisc. 367. So, when judgments are impeached and sought to be set aside for fraud, the plaintiff's therein are indispensable parties to the bill; 20 Ala. 200. To a bill brought against an assignce by a creditor claiming the final balance, the preferred creditors need not be made parties; 28 Vt. 465. See, also, 20 How. 94; 1 Md. Ch. Dec. 299; 3 Metc. Mass. 474; 11 Paige, Ch. 49.

Debtors must in some cases be joined with the executor in a suit by a creditor; though not ordinarily; Story, Eq. Pl. § 227; 1 Johns. Ch. 305. Where there are several debtors, all must be joined; 1 M'Cord, Ch. 301; unless utterly irresponsible; 1 Mich. 446. Judgment debtors must in some cases be joined in suits between the creditor and assignees or mortgagees; 5 Sandf. 271.

isfaction of their debt; 9 Mo. 304. See, also, 21 Ga. 433; 6 Munf. 520; 7 E. L. & Eq. 54.

Foreclosure suits. All persons having an interest, legal or equitable, existing at the commencement of a suit to foreclose mortgaged premises, must be made parties, or they will not be bound; 4 Johns. Ch. 605; 10 Paige, Ch. 307; 10 Ala. N. s. 283; 3 Ark. 364; 6 McLean, 416; 11 Tex. 526; including the mortgagor within a year after the sale of his interest by the sheriff; 4 Johns. Ch. 649; and his heirs and personal representative after his death; 2 Bland, 684. bond-holders for whose benefit a mortgage has been made by a corporation to a trustee need not be made parties; 5 Gray, 162; Jones, Railroad Securities, § 42. A person claiming adversely to mortgagor and mortgagee cannot be made a defendant to such suit; 3 Barb. Ch. 438.

But

Heirs, distributees, and devisees. All the heirs should be made parties to a bill respecting the real estate of the testator; 3 N. Y. 261; 2 Ala. N. s. 571; 4 J. J. Marsh. 231; 7 id. 432; 5 Ill. 452; although the testator was one of several mortgagees of the vendee, and the bill be brought to enforce the vendor's lien; 6 B. Monr. 74; but need not to a bill affecting personalty; 1 M'Cord, Ch. 280. All the devisees are necessary parties to a bill to set aside the will; 2 Dana, 155; or to enjoin executors from selling lands belonging to the testator's estate; 2 T. B. Monr. 30. All the distributees are necessary parties to a bill for distribution; 1 B. Monr. 27; to a bill by the widow of the intestate against the administrator to recover her share of the estate; 4 Bibb, 543; and to a bill against an administrator to charge the estate with an annual payment to preserve the resi due; 1 Hill, Ch. 51. See, also, 11 Paige, Ch. 49; 2 T. B. Monr. 95; 5 id. 573.

Idiots and lunatics should be joined with their committees when their interests conflict and must be settled in the suit; 2 Johns. Ch. 242; 3 Paige, Ch. 470.

Partners must, in general, be all joined in a bill for dissolution of the partnership, but need not if without the jurisdiction; 17 How. 468; 12 Metc. 329. And see 3 Stor. 335. Assignees of insolvent partners must be joined; 10 Me. 255.

Dormant partners need not be joined when not known in the transaction on which the bill is founded; 7 Blackf. 218.

Principal and agent should be joined if there be a charge of fraud in which the agent participated; 3 Stor. 611; 12 Ark. 720; and the agent should be joined where he binds himself individually; 3 A. K. Marsh. 484.

See, also, 5 H. & J. 147; 8 Ired. Eq. 229; 2 D. & B. 357; 1 Barb. Ch. 157.

Trustee and cestui que trust. If a trustee has

may proceed against the trustee alone to compel satisfaction, or the fraudulent assignee may be joined with him at the election of the complainant; 2 Paige, Ch. 278.

JOINDER

The trustees under a settlement of real estate, against whom a trust or power given to them to sell the estate is to be enforced, are necessary parties to a suit for that purpose; 39 E. L. & Eq. 76. See, also, id. 225; 24 Miss. 597; 19 How. 376; 5 Du. N. Y. 168; 8 Md. 34.

AT LAW.

In actions ex contractu.

All who have a joint legal interest or are jointly entitled must join in an action on a contract, even though it be in terms several, or be entered into by one in behalf of all; Brown, Partn. 18; 1 Saund. 153; Archb. Civ. Pl. 58; Metc. Yelv. 177, n. 1; 10 East, 418; 8 S. & R. 308; 15 Me. 295; 3 Brev. 249; 3 Ark. 565; 16 Barb. 325: as, where the consideration moves from several jointly; 2 Wms. Saund. 116 a; 4 M. & W. 295; 5 id. 698; or was taken from a joint fund; 19 Johns. 218; 1 Meigs,

394.

One of several joint obligees, payees, or assignees may sue in the name of all; 10 Yerg. 235. See 4 Saund. 657.

Some contracts may be considered as either joint or several, and in such case all may join, or each may sue separately; but part cannot join leaving the others to sue separately.

In an action for a breach of a joint contract made by several, all the contracting parties should be made defendants; 1 Saund. 158 n.; even though one or more be bankrupt or insolvent; 2 Maule & S. 33; but see 1 Wils. 89; or an infant; but not if the contract be utterly void as to him; 3 Taunt. 307; 5 Johns. 160, 280; 11 id. 101; 5 Mass. 270; 1 Pick. 500.

On a joint and several contract, each may be sued separately, or all together; 1 Pet. 73; 1 Wend. 524.

Executors and administrators must bring their actions in the joint names of all; 5 Scott, N. R. 728; 1 Saund. 291 g; 2 id. 213; 2 N. & M ̊C. 70; 2 Penning. 721; 1 Dutch. 374; even though some are infants; Broom, Part. 104.

All the executors who have proved the will are to be joined as defendants in an action on the testator's contract; Broom, Part. 196; 1 Lev. 161; 1 Cr. M. & R. 74; 4 Bingh. 704. But an executor de son tort is not to be joined with the rightful executor. And the executors are not to be joined with other persons who were joint contractors with the deceased; 2 Wheat. 344; 6 S. & R. 272; 5 Cal. 173.

Administrators are to be joined, like executors; Comyns, Dig. Administrators (B 12). Foreign executors and administrators are not recognized as such, in general; 2 Jones, Eq. 276; 10 Rich. 393; 7 Ind. 211. Husband and wife must join to recover rent due the wife before coverture on her lease while sole; Co. Litt. 55 b; Cro. Eliz.

700; on the lease by both of lands in which she has a life estate, where the covenant runs to both; 20 Barb. 269; but on a covenant generally to both, the husband may sue alone; 2 Mod. 217; 1 B. & C. 443; 1 Bulstr. 331; in all actions in implied promises to the wife acting in autre droit; Comyns, Dig. Baron & F. (V); 9 M. & W. 694; 4 Tex. 283; as to suit on a bond to both, see 2 Penning. 827; on a contract running with land of which they are joint assignees; Woodf. Landl. & T. 190; Cro. Car. 503; in general, to recover any of the wife's choses in action where the cause of action would survive to her; Comyns, Dig. Baron & F. (V); 1 Chitty, Pl. 17; 1 Maule & S. 180; 1 P. A. Browne, 263; 13 Wend. 271; 10 Pick. 470; 9 Ired. 163; 21 Conn. 557; 24 Miss. 245; 2 Wisc. 22.

They may join at the husband's election in suit on a covenant to repair, when they_become joint grantees of a reversion; Cro. Jac. 399; to recover the value of the wife's choses in action; 5 Harr. Del. 57; 24 Conn. 45; 2 Wisc. 22; 2 Mod. 217; 2 Ad. & E. 30; 2 Maule & S. 396, n.; in case of joinder the action survives to her; 6 M. & W. 426; 10 B. & C. 558; in case of an express promise to the wife, or to both where she is the meritorious cause of action; Cro. Jac. 77, 205; 1 Chitty, Pl. 18; 5 Harr. Del. 57; 32 Ala. N. s. 30.

They must, in general, be joined in actions on contracts entered into by the wife dum sola; 1 Kebl. 281; 2 Term, 480; 7 id. 348; 1 Taunt. 217; 7 id. 432; 8 Johns. 149; 1 Grant, Cas. 21; 5 Harr. Del. 357; 25 Vt. 207; see 15 Johns. 403; 17 id. 167; 7 Mass. 291; where the cause of action accrues against the wife in autre droit; Cro. Car. 518. They may be joined when the husband promises anew to pay the debt of the wife contracted dum sola; 7 Term, 349; for rent or breaches of covenant on a joint lease to both for the wife's benefit; Broom, Part. 178, 179.

Joint tenants must join in debt or an avowry for rent; Broom, Part. 24; but one of several may make a separate demise, thus severing the tenancy; Bacon, Abr. Joint Ten. (H 2); 12 East, 39, 57, 61; 3 Campb. 190; and one may maintain ejectment against his co-tenants; Woodf. Landl. & T. 789.

Partners must all join in suing third parties on partnership transactions; I Esp. 183; 2 Campb. 302; 18 Barb. 534; 7 Rich. 118; including only those who were such at the time the cause of action accrued; Broom, Part. 65; although one or more may have become insolvent; 2 Cr. & M. 318; but not joining the personal representative of a deceased partner; 2 Salk. 444; 2 Maule & S. 225; 4 B. & Ald. 374; 9 B. & C. 538; with a limitation to the actual parties to the instrument in case of specialties; 6 Maule & S. 75; and including dormant partners or not, at the election of the ostensible partners; 2 Esp. 468; 10 B. & C. 671; 4 B. & Ald. 437. See 4 Wend. 628. Where one partner contracts in his name for the firm, he may sue alone, or

all may join; 4 B. & Ad. 815; 4 B. & Ald. 437; but alone if he was evidently dealt with as the sole party in interest; 1 Maule & S.

249.

The surviving partners; 3 Ball & B. 30; 1 B. & Ald. 29, 522; 18 Barb. 592; must all be joined as defendants in suits on partnership contracts; 1 East, 30. And third parties are not bound to know the arrangements of partners amongst themselves; 4 Maule & S. 482; 8 M. & W. 703, 710.

A partner need not be joined if he was not known as such at the time of making the contract and there was no indication of his being a partner; 1 Bosw. 28; 19 Ark. 701. And see PARTNERSHIP.

Tenants in common should join in an action on any joint contract; Comyns, Dig. Abatement (E 10).

Trustees must all join in bringing an action; 1 Wend. 470.

In actions ex delicto.

Joint owners must, in general, join in an action for a tortious injury to their property; 1 Saund. 291 g; 6 Term, 766; 7 id. 297; 11 N. H. 141; in trover, for its conversion; 5 East, 407; in replevin, to get possession; 6 Pick. 571; 8 Mo. 522; 15 Me. 245; or in detinue, for its detention, or for injury to land; 3 Bingh. 455; 29 Barb. 9.

So may several owners who sustain a joint damage; 1 W. & M. 223.

For injury to the person, plaintiffs cannot, in general, join; 2 Wms. Saund. 117 a; Cro. Car. 512; Cro. Eliz. 472.

Partners may join for slanders; 3 Bingh. 452; 10 id. 270; 1 C. & K. 568; 8 C. & P. 708; for false representations; 17 Mass. 182; injuring the partnership.

An action for the infringement of letters patent may be brought jointly by all the parties who at the time of the infringement were the holders of the title; 1 Gall. 429; 1 McAll. 82.

In cases where several can join in the commission of a tort, they may be joined in an action as defendants; 3 East, 62; 6 Taunt. 29; 14 Johns. 462; 19 id. 381; as, in trover; 1 Maule & S. 588; in trespass; 2 Wms. 117 a; for libel; Broom, Part. 249,not for slander; Cro. Jac. 647; in trespass; 1 C. & M. 96.

Husband and wife must join in action for direct damages resulting from personal injury to the wife; 3 Bla. Com. 140; 4 Iowa, 420; in detinue, for the property which was the wife's before marriage; 2 Tayl. 266; see 30 Ala. N. s. 582; for injury to the wife's property before marriage; 2 Jones, No. C. 59; where the right of action accrues to the wife in autre droit; Comyns, Dig. Baron & F. (V); 11 Mod. 177; 2 B. & P. 407; and, generally, in all cases where the cause of action by law survives to the wife; 4 B. & Ald. 523; 10 Pick. 470; 35 Me. 89.

They may join for slander of the wife, if

the words spoken are actionable per se, for the direct injury; 4 M. & W. 5; 22 Barb. 396; 2 Hill, N. Y. 309; 2 T. B. Monr. 56; 25 Mo. 580; 4 Iowa, 420; 11 Cush. 10; and in ejectment for lands of the wife; Broom, Part. 235; 1 Bulstr. 21.

They must be joined as defendants for torts committed by the wife before marriage; Co. Litt. 351 b; 5 Binn. 43; or during coverture; 19 Barb. 321; 2 E. D. Smith, 90; or for libel or slander uttered by her; 5 C. & P. 484; and in action for waste by the wife, before marriage, as administratrix; 2 Wms. Ex. 1441.

They may be joined in trespass for their joint act; 2 Stra. 1094; 4 Bingh. N. c. 96; 3 B. & Ald. 687; 6 Gratt. 213.

Joint tenants and parceners, during the continuance of the joint estate, must join in all actions ex delicto relative thereto, as in trespass to their land, and in trover or replevin for their goods; 2 Bla. Com. 182, 188; Bacon, Abr. Joint Ten. (K); 2 Salk. 205; 29 Barb. 29. Joint tenants may join in an action for slander of the title to their estate; 3 Bingh. 455. They should be sued jointly, in trespass, trover, or case, for any thing respecting the land held in common; 5 Term, 651; Comyns, Dig. Abatement (F 6); 1 Wms. Saund. 291 e. Joint tenants should join in an avowry or cognizance for rent; 3 Salk. 207; 1 id. 390; or for taking cattle damage feasant; Bacon, Abr. Joint Ten. (K); or one joint tenant should avow in his own right, and as bailiff to the other; 3 Salk. 207. But a tenant in common cannot avow the taking of the cattle of a stranger upon the land damage feasant, without making himself bailiff or servant to his co-tenant; 2 H. Bla. 388, 389; Bacon, Abr. Replevin (K).

Master and servant, where co-trespassers, should be joined though they be not equally culpable; 2 Lev. 172; 1 Bingh. 418; 5 B. & C. 559. Partners may join for a joint injury in relation to the joint property; 3 C. & P. 196. They may be joined as defendants where property is taken by one of the firm for its benefit; 1 C. & M. 93; and where the firm makes fraudulent representations as to the credit of a third person, whereby the firm gets benefit; 17 Mass. 182.

Tenants in common must join for a trespass upon the lands held in common; Littleton, § 315; 15 Johns. 497; 8 Cow. 304; 28 Me. 136; or for taking away their common property; Cro. Eliz. 143; or for detaining it; i Hill, N. Y. 234; or for a nuisance to their estate; 14 Johns. 246.

IN CRIMINAL CASES. Two or more persons who have committed a crime may be jointly indicted therefor; 7 Gratt. 619; 6 McLean, 596; 10 Ired. 153; 8 Blackf. 205; only where the offence is such that it may be committed by two jointly; 3 Sneed, 107.

They may have a separate trial, however, in the discretion of the court; 15 Ill. 536; 1 Park. Cr. Ca. 424; 7 Gratt. 619; 10 Cush. 530; 5 Strobh. 85; 9 Ala. N. s. 137; and

JOINT ACTION

9

JOINT STOCK COMPANY

See Dicey, Parties; Steph. Pl. JOINT ACTION. An action brought by two or more as plaintiffs or against two or more as defendants. See 1 Parsons, Contr.; ACTIONS; JOINDER, § 1.

he signs a receipt for money, in conjunction with another executor, and he receives no part of the money, but agrees that the other executor shall retain it, and apply it to his own use, this is his own misapplication, for which he is responsible; 1 P. Wms. 241, n. 1; 1 Sch. & L. 341; 2 id. 231; 7 East, 256; 11 Johns. 16; 11 S. & R. 71; 5 Johns. Ch.

Fonbl. Eq. b. 2, c. 7, s. 5, n. k.

Upon the death of one of several joint exe

JOINT CONTRACT. One in which the contractors are jointly bound to perform the promise or obligation therein contained, or entitled to receive the benefit of such promise or obligation.

It is a general rule that a joint contract survives, whatever may be the beneficial interests of the parties under it. When a partner, covenantor, or other person entitled, having a joint interest in a contract not running with the land, dies, the right to sue survives in the other partner, etc.; 1 Dall. 65, 248; Addison, Contr. 285. And when the obligation or promise is to perform something jointly by the obligors or promisors, and one dies, the action must be brought against the survivor; Hamm. Partn. 156; Barb. Partn.

When all the parties interested in a joint contract die, the action must be brought by the executors or administrators of the last surviving obligee against the executors or administrators of the last surviving obligor; Add. Contr. 285. See CONTRACTS; PARTIES TO ACTIONS; CO-OBLIgor.

JOINT EXECUTORS. Those who are joined in the execution of a will. ·

Joint executors are considered in law as

per

but one person representing the testator; and, therefore, the acts of any one of them, which relate either to the delivery, gift, sale, payment, possession, or release of the testator's goods, are deemed, as regards the sons with whom they contract, the acts of all; Bacon, Abr.; 11 Viner, Abr. 358; Comyns, Dig. Administration (B 12); 1 Dane, Abr. 583; 2 Litt. Ky. 315; Dy. 23, in marg. ; 16 S. & R. 337. But an executor cannot, without the knowledge of his co-executor, confess a judgment for a claim part of which was barred by the act of limitations, so as to bind the estate of the testator; 6 Penn. 267.

As a general rule, it may be laid down that each executor is liable for his own wrong or devastavit only, and not for that of his colleague. He may be rendered liable, however, for the misplaced confidence which he

JOINT INDICTMENT. One indictment brought against two or more offenders, charging the defendants jointly. It may be where there is a joint criminal act, without any regard to any particular personal default or defect of either of the defendants: thus, there may be a joint indictment against the joint keepers of a gaming-house. 1 Ventr. 302; 2 Hawk. Pl. Cr. 240.

JOINT STOCK BANKS. In English Law. A species of quasi corporations, or companies regulated by deeds of settlement.

In some respects they stand in the same situation as other unincorporated bodies; but they differ from the latter in this, that they are invested by certain statutes with powers and privileges usually incident to corporations. These enactments provide for the continuance of the partnership notwithstanding a change of partners. The death, bankruptcy, or the sale by a partner of his share, does not affect the identity of the partnership; it continues the same body, under the same name, by virtue of the act of parliament, notwithstanding these changes. 7 Geo. IV. c. 46, s. 9.

An asso

JOINT STOCK COMPANY. ciation of individuals for purposes of profit, possessing a common capital contributed by the members composing it, such capital being commonly divided into shares, of which each member possesses one or more, and which are transferable by the owner. The business of the association is under the control of certain selected individuals, called directors; such an association was, at common law, merely a large partnership; Shelford, Joint St. Comp. 1. A quasi partnership, invested by statutes, in England and many of the states, with some of the privileges of a corporation. See 10 Wall. 556; L. R. 4 Eq. 695.

There is in such a company no dilectus personarum, that is, no choice about admitting partners; the shares into which the capital is divided are transferable at the pleasure of the person holding them, and the assignee becomes a partner by virtue of the transfer, and the rights and duties of the partners or members are determined by articles of association, or, in England, by a deed of settlement. partnership whereof the capital is divided, or agreed to be divided, into shares so as to be transferable without the express consent of all the co-partners. 1 Parsons, Contr. 121. The 7 & 8 Vict. includes within the term joint

A