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sequently abandoned the action against C., on his giving up a part of the proceeds, and it appearing that A. had in fact no such lien as alleged, A. was sued by C. for money had and received to his use. It was held that this action was rightly brought, and that the assignees could not have been joined as plaintiffs, they having no interest in the money sought to be recovered from A.(t)
23. It is likewise a consequence of the preceding rules that, when a contract may be treated either as joint or as several, either all must join, or each sue alone in respect of his several interest; and where one of several persons, who have a joint right of action, dies, the right then vests in the survivors to the exclusion of the personal representatives of the deceased.(u) *24. It may be proper to observe here that although partners cannot in general sue each other,(x) yet an action is maintainable in [*22 ] many cases by one party against another similarly circumstanced, and having a similar interest, to enforce contribution; as, by one co-surety in a bond against another,(y) or by one defendant against a co-defendant, after a joint judgment in an action ex contractu,(z) provided the contract declared on were not entered into with the defendants as partners in trade. (a) So, an action lies at suit of a shipowner against the owner of the cargo for his proportion of general average, (b) and of ship's stores necessarily thrown overboard after capture by the enemy; (c) and at suit of the proprietor of goods laden on the deck of a ship, according to the custom of a particular trade, against the shipowner for a loss by jettison; (d) or against another proprietor to recover contribution in the nature of general average.(e)
24 a. Where the plaintiff and the defendant had executed as sureties a warrant of attorney given as a *collateral security for a sum of money advanced on mortgage to the principals, and on default being [22 a] made by the principals judgment was entered upon the warrant of attorney, and execution issued against the plaintiff for the amount of the principal money and interest, which, together with the costs of the execution, was paid by him it was held, that the plaintiff might recover contribution from his co-surety in an action for money paid. (f) And where four persons who had acted as directors of a proposed railway company, being sued for debts contracted on account of the concern, jointly retained an attorney to defend them on their personal responsibility:-Held, that one of the four who had paid the attorney's bill was entitled to sue the others for contribution, on showing that in the retainer of the attorneys the plaintiff, the defendant, and the other two parties were contracting, independently of the com
(t) Betteley v. Reed, 4 Q. B. 511.P
(u) Jones v. Yates, 9 B. & C. 538; post, s. 86.
(x) Post, s. 73.
(y) Toussaint v. Martinnant, 2 T. R. 100; and per Buller, J., Id. 105; Browne v. Lee, 6 B. & C. 689 ;r Cowell v. Edwards, 2 B. & P. 268; Decker v. Pope, Selw. N. P., 10th ed. 72, n. (28).
(2) Blackett v. Weir, 5 B. & C. 387;s Holmes v. Williamson, 6 M. & S. 158.
(a) Sadler v. Nixon, 5 B. & Ad. 936;t post, s. 73.
(6) Birkley v. Presgrave, 1 East, 220.
(c) Price v. Noble, 4 Taunt. 123.
(d) Gould v. Oliver, 4 Bing. N. C. 134," and cases there cited.
(e) Dobson v. Wilson, 3 Camp. 480.
(f) Kemp v. Finden, 12 M. & W. 421. See Price v. Carter, 14 L. J., N. S., Q. B.
PEng. Com. Law Reps. 45. Id. 17. Id. 13. Id. 12. Id. 27. Id. 33.
pany.(g) The plaintiff and the defendant were purchasers of two separate underleases of two adjoining houses, held under one original lease at one entire rent; the plaintiff, having paid the whole of the rent reserved by the original lease for a year and a half to the representatives of the assignee of the reversion, under a threat of distress, sued the defendant for his proportion of the rent due in respect of the house held by him, as money paid by the plaintiff to his use:-Held, that the action would not lie, there being no evidence that the money *sought to be recovered was money paid to [*22 b] the use of the defendant.(h)
25. We shall next consider in what cases the assignee of a chose in action (not being a specialty) may sue thereon in his own name; for, although the assignment of a chose in action or contract may be a sufficient consideration for a promise, (i) yet as a general rule any action upon a contract in which the beneficial interest has been assigned must be brought in the name of the assignor. For instance an interest in a partnership is not assignable at law, so as to enable the assignee to sue as a co-partner; but nevertheless, the law will take notice that an interest in a partnership is a thing of value, and it may be made the subject of a valid contract.(k) Where the drawer of a ticket in a Derby lottery sold it to the plaintiff before the race, and the horse named in it was ultimately declared to be the winner: it was held, that an action for money had and received would not lie by the plaintiff against the stakeholder, there being no privity of contract originally between these parties, and the assignment of a chose in action not giving to the assignee a right of action.(1)
25 a. It might be supposed that considerable inconvenience would result from the strictness with which the *rule of law just stated is observ[*22 c] ed; but it must be borne in mind that the assignment of a debt is, in general, perfectly legal as between the assignor and assignee, and although an action for the recovery of the debt must be brought in the name of the former, yet he will hold the amount when recovered as trustee for the assignee. In practice, moreover, a debt is frequently recovered in the name of the assignor for the benefit of the assignee, when, from the peculiar facts of the case, no action could have been maintained by the last-named party against the debtor. Thus, A., B., and C. are shareholders and co-partners in a mercantile concern, which stops payment, being at the time of stoppage indebted to D. and other creditors. A., being largely interested in the concern, and anxious to effect a speedy adjustment of its affairs, gives security to a certain bank for advances to be made by them for the purpose of liquidating the various claims upon the company in which he is interested. Out of these advances D. is paid, who thereupon assigns the debt due to him from the firm to a trustee on behalf of A. :—An action may now be maintained against B. and C., who are shareholders in the insolvent concern, in the name of D., and the amount of the said debt may thus be recovered for the benefit of A., who could not
(g) Edgar v. Knapp, 6 Scott, N. R., 707.
(h) Hunter v. Hunt, 1 C. B. 300.
(i) Per Buller, J., Master v. Miller, 4 T. R. 341; Price v. Seaman, in error, 4 B. & C. 525. 528; Com. Dig. Action upon the Case upon Assumpsit, (B. 3).
(k) See per Maule, J., Tempest v. Kilner, 15 L. J., N. S., C. P., 11.
(1) Jones v. Carter, 15 L. J., N. S., Q. B., 96. See also Doe d. Williams v. Evans, 1 C. B. 717.
Eng. Com. Law Reps. 10.
sue his co-partners at law. Nor can payment be pleaded by B. and C. in defence to such an action; for the transaction amounts in law to a purchase of the debt due to D., and not to payment.(m) *It will, no doubt, occur to the reader that by a similar process debts are recovered [*22 d] from, and contribution enforced against, members of the committees of projected railway and other companies, which could not be recovered or enforced in any form of action at suit of any individual being a co-partner in the undertaking. Both the above and other cases which may suggest themselves will be found confirmatory and explanatory of the general rule that a chose in action cannot be assigned at law. (n)
26. However, the assignment of a debt will in certain cases give to the assignee a right of action in his own name for its recovery. If A. owes B. 100l. and B. owes C. 1007., and the three meet, and it is agreed between them that A. shall pay C. the 100l., B.'s debt is extinguished, and C. may recover that sum against A.;(0) for the discharge and extinguishment of B.'s debt is a good consideration for A.'s promise to C.;(p) in such a case, moreover, it is not necessary that the amount due from A. to B. should, at the date of the agreement between the parties, be exactly ascertained; it will be sufficient if A. promise to pay C. such amount when ascertained, (q) or if specified, out of a fund of uncertain *amount. (r) In the example given above, the parties interested are supposed to agree expressly [*22 e] to the proposed arrangement, and it seems clear that in order to give to the assignee of the debt a right of action at law for its recovery in his own name, the debtor must consent to the agreed transfer of the debt;(s) but in order to constitute a good equitable assignment of a debt, it is sufficient if there be an engagement by the debtor that a particular fund shall be charged with or appropriated to the payment of the debt.(t) Where A., being indebted to B., and C., authorised B. to repay himself out of the net proceeds of certain shipments on his (A.'s) account, and after so doing, to pay a moiety of the residue (if not exceeding a specified amount) to C., who agreed to guarantee B. against claims by any other parties: it was held, that such a transaction was either a valid appropriation or equitable assignment of funds
(m) See M'Intyre v. Miller, 13 M. & W. 725. As to the meaning of " payment," Id. Baillie v. Moore, 15 L. J., N. S., Q. B., 169; Maillard v. The Duke of Argyll, 6 Scott, N. R. 938.
(n) See in addition to the cases cited supra, Johnson v. Collings, 1 East, 104; Fairlie v. Denton, 8 B. & C. 400;3 Howell v. M‘Ivers, 4 T. R. 690; 2 Bla. Co. 442; Story, Eq. Pl. ss. 153, 154.
(0) Per Buller, J., Tatlock v. Harris, 3 T. R. 180: Fairlie v. Denton, 8 B. & C. 395. 400 ; Wharton v. Waller, 4 B. & C. 166. See also Israel v. Douglas, 1 H. Bl. 239.
(P) Com. Dig. Action upon the Case upon Assumpsit, (B. 1, 3).
(9) Crowfoot v. Gurney, 9 Bing. 372.
(r) Crowfoot v. Gurney, 9 Bing. 372;b George v. Tibbits, 5 A. & E. 107, and cases there cited; and see Carvalho v. Burn, 4 B. & Åd. 382, affirmed in error, 1 A. & E. 883, recognized, Lewis v. Edwards, 7 M. & W. 303. 306;* D'Arnay v. Chesnean, 13 M. & W. 796.*
(s) The assent of C. is necessary to effect the extinguishment of B.'s debt, Chitt. Contr. 3d ed. 614; and B.'s assent is necessary for the like reason as regards A. See per Best, J., Wilson v. Coupland, 5 B. & Ald. 232;f Cuxon v. Chadley, 3 B. & C. 591.
(t) Per Lord Denman, C. J., in George v. Tibbits, supra.
Eng. Com. Law Reps. 15. Id. 10. Id. 23. bld. 23. cId. 31. Id. 24. Id. 28.
to the specified amount, in favour of C., and was not subsequently revoked by A.'s bankruptcy.(u)
27. In addition to the instances above given of the assignment of a chose in action, we may observe that *bills of exchange(x) are assignable
[*22ƒ] by mercantile usage recognized by the common law;(y) and that
promissory notes are made so by statute,(z) both kinds of instrument being
1. LANDLORD AND TENANT, ss. 28-53.
2. PRINCIPAL AND AGENT, ss. 54-72.
3. PARTNERS-CORPORATIONS-COMPANIES, ss. 73–93.
1.-LANDLORD AND TENant.
Right of the Landlord to sue, s. 28-28 b. Where several parties are interested in the demised Premises, s. 29. Where the Parties interested are Joint Tenants, Coparceners,
(u) Hutchinson v. Heyworth, 9 A. & E. 375;h Walker v. Rostron, 9 M. & W. 411 ;* Dickinson v. Morrow, 14 M. & W. 713.*
(x) 2 Bla. Com. 466, 467; per Lord Abinger, C. B., 9 M. & W. 92; Hansard v. Robinson, 7 B. & C. 94.i
(y) It is important to observe the distinction between the transfer of the right of property and the transfer of the contract, ex. gr. the indorsement of a bill of lading transfers the right of property, but does not transfer the contract so as to enable the indorsee to suc upon it in his own name; Thompson v. Dominy, 14 M. & W. 403. As to the transfer of receipts or certificates given on payment of deposit in respect of foreign stock, Hennings v. Rothschild, 4 Bing. 332.*
(z) 3 & 4 Ann. c. 9, s. 1; 2 Bla. Com. 467, 468; Byles on Bills, 2nd ed. 3, 4,
(a) Carlon v. Kennedy, 12 M. & W. 139 ;* Oridge v. Sherborne, 11 Id. 374.
(b) Per Lord Ellenborough, C. J., Ord v. Portal, 3 Camp. 239; Lowe v. Copestake, 3 C. & P. 300 ; and see Machell v. Kinnear, 1 Stark. 499.m
(0) Wood v. Connop, 5 Q. B. 292.o
Eng. Com. Law Reps. 36. Id. 14. Id. 13. Id. 14. mId. 2. Id. 48.
*Reprinted at $2.50 per vol.
or Tenants in Common, ss. 30-34. Generally-who should sue after Assignment of the Reversion, ss. 35-40. Whether Mortgagor or Mortgagee should sue, ss. 41-44. When there is a joint Lease by Mortgagor and Mortgagee, &c. ss. 45-46 b. Who should sue after Assignment of Rent, s. 47. Who should sue after the Lessor's Death, ss. 48-50. Right of the Tenant to sue, ss. 51-53.
28. For all breaches of that duty which a tenant owes to his landlord, and which arises either from implication of law or from express agreement or covenant, the latter is necessarily the proper party to sue. With respect to the question whether, under any and what circumstances, an action of covenant can be maintained by a lessor who has not executed the lease against a lessee who has executed, and has occupied under the lease, it seems that as between the immediate parties to the deed the rule laid down in Comyn's Digest (a) will apply, viz., " If one party executes his part of an indenture, it shall be his deed, though the other does not execute his part." At all events, the law was thus declared in a very recent case, (b) where, in answer to the argument that if the lease be not executed by the lessor, there is no demise, and no consideration for the covenants by [*22 i] the lessee, the Court observed, that "a covenant, being under seal, does not by law require any consideration to support it, and though an illegal consideration may be shown, and will vitiate it, and if a consideration be stated on the face of a deed a different one may be proved, in order to raise a legal defence; yet a mere failure of consideration which once existed may have no more effect than a total want of consideration in the first instance.
Several cases are cited in Com. Dig. Covenant (F), to show that under circumstances a failure of consideration will prevent an action of covenant from being maintainable, and we are by no means prepared to deny this proposition."
28 a. In the judgment from which the above extract is taken several cases were cited to which it may be advisable shortly to refer. (1). Berkeley v. Hardy, (c) which, in fact, merely decided that a covenantee, who was not a party to the indenture of lease, could not sue upon the covenants entered into with him; (2). Cardwell v. Lucas, (d) where it was held that the assignee of a lessor who has not executed the lease cannot sue upon the covenants contained in it; (3). Rose v. Poulton,(e) which was not an action between landlord and tenant, and where the covenants were in gross and unconnected *with any interest in land. These cases then are clearly distinguishable from that of Cooch v. Goodman, above refer- [*22k] red to. It must be admitted, however, that the judgments in them contain several passages (f) which appear irreconcileable with the law as there laid
(a) Faits (C. 2.)
(b) Cooch v. Goodman, 2 Q. B. 580. In Doe d. Marlow v. Wiggins, (4 Q. B. 376,)p Patteson, J., says "Cooch v. Goodman was a very peculiar case. All that the Court decided there was, that the action might lie, though the deed was not executed by the covenantees. It was not held that an interest passed by the deed, or that it amounted to a lease; and the case went off upon another point." See Aveline v. Whisson, 4 M. & G. 801.9
(d) 2 M. & W. 111.
(e) 2 B. & Ad. 822."
(c) 5 B. & C. 355.r (f) See per Holroyd, J., 5 B. & C. 358;t per Parke, B., 2 M. & W. 117; and Judgment, Id. 123. Per Ld. Tenterden, C. J., (2 B. & Ad. 828,") where that learned judge says, "Whether an entire failure of consideration will in all cases relieve a party from the obligation of his deed, it is not necessary at present to inquire. In the case of a lease not executed by the lessor it certainly does, because, in default of such execution there is no lease."
Eng. Com. Law Reps. 42. Id. 45. Id. 43. Id. 11.
Id. 22. Id. 11. "Id. 22.