should be joint also, and therefore the action there being joint it was well brought, and after being twice moved, judgment was given for the plaintiff.

1

The last cases we shall refer to, before coming to the consideration of those determined in our own times, are those of Scott v. Godwin, determined in K. B., 37 Geo. III.,1 and Anderson v. Martindale, determined four years later. In Scott v. Godwin the reversion of land demised to the defendant for years was conveyed to John Scott and Robert Scott, and the heirs of Robert Scott, in trust for John Scott and his heirs. John Scott declared singly on a covenant contained in the lease, In delivering the opinion of the court, Eyre, C. J., after premising that he took it to be most clear that the operation of law upon the deeds stated by the plaintiff was to constitute John and Robert Scott joint assignees, continued, "the effect of this is, "that the defendants' covenants became also by operation of "law contracts with John and Robert Scott jointly, and that all causes of action to them arising out of these contracts must "follow the nature of the contracts, and must arise to John " and Robert Scott jointly. In fact, John Scott has declared on a covenant made with John and Robert Scott, but has sup"posed himself capable of sustaining an action alone for the "breach of it. Now that this is fundamentally wrong there 66 can be no doubt, and the principle on which it is wrong was "not denied in the argument. Many plaintiffs can "have but one right, having but one interest and one cause of "action, which ought to be, and is, indivisible, admitting of but

66

66

one satisfaction. But if in the nature of the thing, if on prin66 ciples of law or authorities, it could be that a man should "derive a several interest out of a joint obligation to himself "and others, and that plaintiffs could sue separately for their "portions of one right, it is most obvious that it must vex and "harass defendants extremely. That this cannot be appears "from Slingsby's case, and from the principle of those passages "cited from Co. Litt. which show that joint tenants must plead "and be impleaded jointly. Whereas in the case of defendants, "in respect of the satisfaction they are to make to the plaintiff, "it is exactly the same thing whether they are sued singly or "with others, for every individual co-defendant is ultimately "liable to the whole demand, and execution may be had against every one. .. I take it to have been solemnly adjudged "in several cases, and to be the known received law, that one co-covenantee, one co-obligee, or one joint contractor by parol, "cannot sue alone. In the last case it is common experience,

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66

1 Bos. & Pull. 67.

"that where a joint contract appears in evidence on the general "issue the plaintiff is nonsuited, and there are many cases in the "books in which it has been held to be error for one co-obligee "or one co-covenantee to sue alone. . . . . The case of Eccleston "v. Clipsham and Slingsby's case were both in covenant, and so directly in point. . A breach of a joint contract with "two or more cannot be joint and several. This plaintiff could "not sue alone, and therefore we are of opinion that there must "be judgment for the defendant."

The case of Anderson v. Martindale,1 determined in the King's Bench in Trinity Term, 41 Geo. III., carried the principle of Slingsby's case still further, deciding that the necessity of suing jointly depends neither on the frame and wording of the covenant, nor on the quality of the interest, provided such interest be joint in law, a joint legal interest in two covenantees, though for the benefit of one of them only, rendering it necessary to sue jointly. There the covenant was with J. Anderson, deceased, his executors, administrators and assigns, and also to and with E. Wyatt and her assigns, to pay to the said J. A., his executors, administrators or assigns, 601. per annum during the life of E. W. It was argued that the covenant was several, and not joint; the defendant covenanted to and with J. A., his executors, &c., and also to and with E. W. and her assigns; this was a distinct covenant to each of them, and the variance in the expression showed that it was so intended. It was true that such a construction made the defendant liable to two actions; but that was his own fault, for binding himself to two persons for an act to be done only to one of them. If he had so bound himself to each by two different deeds, the covenantees could not have sued jointly; then it made no difference if there were several covenants to several persons in the same deed. But if the covenant were several, though the interest were joint, the right of action must be several. Such was the argument for the plaintiff. But Lord Kenyon, C.J., decided that there was no distinguishing Slingsby's case from the present; and after recapitulating the particulars of that case, and repeating the principle upon which it was decided, viz. that where the interest is joint, if several were to bring actions for one and the same cause, the court would be in doubt for which of them to give judgment, continued, "So here, I should say, here is a covenant to two to pay an "annuity to one of them; shall both bring actions for the same "interest where only one duty is to be paid? Which of them "ought to recover for the non-performance of the covenant?

1 1 East, 497.

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"The defendant is only bound to pay the annuity once. This “is different, therefore, from the case put by Lord Coke, where "the covenant is to several for the performance of several "duties to each; there the covenant shall be moulded according "to the several interests of the parties, and each shall only recover for a breach so far as his own interest extends. It "has been assumed in the argument for the plaintiff that the "covenantees had several interests, but that is not so; the "covenant to both was for the same thing; and though the "benefit were only to one of them, yet both had a legal interest "in the performance of it; and, therefore, the legal interest being joint during the lives of both, on the death of one it "survived to the other. If, indeed, the covenant had been to "each by two different deeds, though for the same duty, there "could not have been a joinder in action; but here the parties "claim by the same title, and therefore the law coincides with "the justice and convenience of the case."

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We now come to consider the difference of opinion which has been supposed to prevail with respect to these covenants in the Courts of Queen's Bench and Exchequer, but which, if we except certain dicta of the latter appearing to be extrajudicial, we

believe to have no real existence.

The Court of Queen's Bench has uniformly acted on the principle maintained by the preceding and a long series of other judicial decisions. In the case of Foley v. Addenbrooke,1 tried in that court in Hil. Term, 6 Vict., the indenture showed a joint demise by Edward Foley and his wife and Mary Whitby, and the covenants were with Foley and his wife and Mary Whitby, and the heirs and assigns of the wife and Mary Whitby respectively. Upon reference to the indenture only, as set out in the declaration, it appeared that Foley and his wife and Mary Whitby had such an interest as enabled them jointly to demise the whole of the premises. It appeared, however, by the inducement, that Foley and his wife had only an undivided moiety: and therefore it was, as the court held, to be inferred, though her interest was not shown by averment, that Mary Whitby had the other moiety, making up the whole interest in the premises. Upon this view of the facts, the court was of opinion that, the demise being joint, and the covenants upon which the action was brought entire, and made with both the lessors, the cause of action was joint, and that both the covenantees ought to have sued, though, as between themselves, their interest might be separate. Lord Denman, C. J., in delivering the judgment of the court,

referring to the cases already cited, concluded: “In the present "case the covenants, for breach of which the action is brought,

are such as to give the covenantees a joint interest in the per"formance of them: and the terms of the indenture are such, "that it seems clear that the covenantees might have maintained "a joint action for breach of any of them. Upon this point "the case of Kitchen v. Buckley1 is a clear authority; and the “case of Petrie v. Bury2 shows that, if the covenantees could sue jointly, they are bound to do so."

The case of Foley v. Addenbrooke, though fully maintaining the principle of Slingsby's case, left the law very much as it stood before. But the next case of importance in the Queen's Bench, that of Hopkinson v. Lee (argued in Hilary Vacation, 8 Vict.), applied the principle to a new form of covenant, devised apparently upon the strength of Mr. Preston's criticism already quoted. There the covenant was "with and to Jonathan "Hopkinson, his executors, administrators and assigns, and "also as a distinct covenant with and to Anne Caroline Hogg, "her executors, administrators and assigns." The instrument in which this covenant was contained recited, that the defendant had borrowed of the plaintiff 29007., part of the monies of Ann Caroline Hogg then in his hands in trust for her, on the security of a mortgage; and that the plaintiff, having required some further security, the defendant proposed to enter into this covenant for securing the same; and that the plaintiff and A. C. Hogg were satisfied therewith, and agreed to accept the same, and to advance the sum of 29007.; and it was witnessed, that in pursuance of this agreement, and in consideration of the premises and of the advance of the said sum to the defendant, the defendant covenanted, in the words quoted above, to pay the plaintiff, his executors, administrators or assigns, regular interest on the 2900l. In delivering judgment in this case Lord Denman, after a very just criticism on Mr. Preston's observations, relied on the case of Anderson v. Martindale. “This language," his lordship continued, referring to the words of the covenant in that case, "as entirely confines the covenant to the plaintiff, and makes another separate covenant with E. Wyatt, "as any words not directly exclusive can make it. In Slingsby's 66 case the covenant was with certain persons named 'et ad et cum quolibet et quâlibet eorum.' No words can be stronger "to give the plaintiff an option to sue all jointly or each sepa"rately. Yet in both the court held, that by reason of the "joint interest in the subject-matter of the suit, as disclosed in

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1 1 Leo. 109.

23 B. & C. 353.

3 6 Q. B. 964.

"the deed itself, the action must be joint. We think it would "be waste of time to argue that the words ' as a distinct cove"nant' do not furnish any stronger inference of the intention to “exclude than those just cited from those well known cases. "If they are still law, the present case must be decided against "the plaintiff. We see no ground for doubting whether they

are.

Such being the uniform tenor of the decisions of the Court of Queen's Bench, we proceed to examine those of the Court of Exchequer. The most prominent cases which have been mentioned as indicative of a difference of opinion between the courts upon the subject of this paper, are those of Sorsbie v. Park, and Keightley v. Watson. The former, however, with the exception of some extrajudicial remarks of the learned judges, and which, if rightly understood, would scarcely form an exception, so far from impugning, directly supports the principle decided by the long series of judicial authorities above mentioned; while the latter, when examined, proves to be altogether beside the question before us, the interests of the covenantees in that case being clearly several and not joint.

In the case of Sorsbie v. Park,1 the declaration stated that the defendant and others, having formed a scheme for erecting by subscription a corn market at Newcastle-upon-Tyne, executed a deed-poll, whereby they severally covenanted to and with each other to advance and pay the several sums of money subscribed and placed opposite their respective names for erecting the corn market within four years, and also to make such payments in respect of the said shares as the committee should deem expedient; and the subscribers and the defendant severally promised and agreed with the plaintiffs, in case of the default of the committee to require such payments within four years, then to make such payments unto such persons, and in such proportions, as should be required by the plaintiffs. It then averred that the plaintiffs did not subscribe any sum of money, but became parties to the deed for the reasons in the declaration mentioned; that the defendant subscribed to the deed for the sum of 5007; that the committee made default in requiring any payment from the shareholders or the defendant within four years; wherefore the plaintiffs, after the said four years, required the defendant to pay 1507. in respect of his shares. Breach, the non-payment thereof. The court was to be at liberty (inter alia) to refer to the deed-poll; and on reference to it, it appeared that the covenant was by the subscribers to and with each other,

1 1 12 M. & W. 146.