several. After what has been advanced, it is perhaps 3. Joint and scarcely necessary to add, that the same words may for some purposes constitute a joint, and for others a several covenant, and have a changeable operation so as to correspond with the different interests of the covenantees under the various agreements in the same deed (r). An interest joint at first, may also by subsequent dealings become several; as if two out of three receive their shares; this is a severance, and will enable the third party to maintain an action singly for his proportion (s). The first duty therefore is to ascertain with certainty the quality of the covenantees' interest, from which will ensue the necessity of their joining or severing in action. It is not denied that difficulties may sometimes occur in distinguishing a joint from a separate interest; and no regular criterion can exist by which this difference can be clearly and broadly defined; but it is presumed that a careful examination of the object of the deed itself, an attention to the general rules for construction of covenants (t), and a perusal of the examples just submitted, will in a great measure surmount any obstacle, and enable the inquirer to arrive at a right conclusion. A brief recapitulation and summary in this place of the principal points of the cases previously cited, (7) Saunders v. Johnson, Skin. 401. Kingdom v. Jones, T. Jo. 150. Lilly v. Hodges, or Hedges, 8 Mod. 166; S.C. 1 Stra. 553. (s) 1 Chit. Plead. 6. 7. 3d ed. K cites Garret v. Taylor, 1 Esp. N.P. (t) Post, Part the Second, p. I. Persons to be joined as they relate to the parties joining or severing in action may perhaps be useful: the subject shall accordingly be divided into two branches; the first, to show what persons must be joined as plaintiffs; the second, what persons must be joined as defendants. First, From the observations before made it has as plaintiffs. been collected, that the nature of the interest derived by the covenantees will generally direct the necessity of their suing severally or in conjunction; but it 1. Where the interest is several. may Where there is no express contract with all, and their legal interest is several, the covenantees must sue separately (u): yet where the contract is entered into with the covenantees jointly, and the estate taken by them is several, they may at their option sue jointly or severally; jointly in respect of the joint contract; severally in respect of the interest (v). And if there are three covenantees taking distinct interests, two of them may support an action without joining the third, though living. This was in effect decided by a recent case (w). Two of three covenantees were plaintiffs; the defendant pleaded actio (u) 1 Chit. Pl. 8. 4th ed. Tip- (w) James v. Emery, in error, 2 J. B. Mo. 195; S. C. 8 Taunt. 245; 5 Price, 529. non; for that Rowley, the other covenantee, was still living; and the judges held that as the interests were several, Rowley was not a necessary party; but no objection was taken either by the court or counsel to the action being commenced by the two conjointly. It therefore appears that although they may sever, they are not under any obligation to do so. And it may be observed that the executor or administrator of each several covenantee stands in his testator's or intestate's situation (r). On the other hand, where a joint interest is created, the covenantees cannot sever in action (y); nor can any words of severalty relieve them from the necessity of suing together; even although the covenant be with each of them, or with them jointly and severally (z). The reason assigned is, that if several were to be permitted to bring distinct actions for one and the same cause, where the interest is joint, the court would be in doubt for which of them to give judgment (a). Should one only commence an action, and omit to aver in his declaration that the others are dead (b), (x) Withers v. Bircham, 3 Barn. & Cres. 254; S. C. 5 Dow. & Ry. 106. ders v. Johnson, Skin. 401. (a) Slingsby's case, 5 Co. 19, a. (y) Eccleston v. Clipsham, 1 Saund. 153; S. C. 2 Keb. 338. 339. 347. 385. Spencer v. Durant, Comb. 115; S. C. 1 Show. 8. Johnson v. Wilson, Willes, & Pul. 67. 248; S. C. 7 Mod. 345. Saun (b) Osborne v. Crosberne, 1 Sid.238. Scott v. Godwin, 1 Bos. 2. Where the interest is joint. II. Persons to be joined as defendants. 1. Where the covenant is several. 2. Where the covenant is joint. or that they dissented from the deed, the defendant may avail himself of it on demurrer, or he may bring error, or move in arrest of judgment (c); for a very recent decision (d) has established that all joint covenantees who may sue must be parties to an action, as their assent is to be presumed; and it is not enough to aver that the other covenantees did not seal; they might sue notwithstanding; and unless the declaration shows that they have no right to be considered as covenantees, it is insufficient. Unlike, too, the several covenant, the executor derives no interest from a deceased joint covenantee, the surviving party being the only person entitled to institute legal proceedings (e). Secondly, What persons must be joined as defendants. Where the covenant is entered into by two or more severally only, it is clear that an action joining them as defendants cannot be maintained; for at law, as well as in equity, the courts will not take cognizance of distinct and separate claims or liabilities of different persons in one suit, though standing in the same relative situations (ƒ). In actions against joint covenantors they must all be made defendants, and an omission to join them in (c) 1 Chit. Pl. 7. 4th ed. (e) Anderson v. Martindale, 1 East, 497. Southcote v. Hoare, 3 Taunt. 87. (f) Birkley v. Presgrave, 1 East, 226, 7. suit can be taken advantage of by a plea in abatement only, verified by affidavit (g). And on the death of one, the joint covenantor incurs all the legal liability by survivorship, and exonerates the executor of his deceased companion (h). The covenantee, it is observable, may recover in execution against one the whole sum covenanted to be paid, and has nothing to do with the contribution between the covenantors (i). But if a covenant be joint in its terms, and the deed be executed by one of the covenantors only, an action may be maintained against that one; for, although the words import a joint covenant, yet the deed is in fact the single instrument of the party executing it (k). Covenants joint and several confer on the covenantee the right of commencing proceedings at his election against both or either of the covenantors (1). And although one of three joint and several covenantors for the payment of an annuity may by his bankruptcy and certificate be rendered irresponsible, yet the covenantee may proceed against the other two (m). And on a joint and several covenant, the (g) Eccleston v. Clipsham, 1 Saund. 154. n. 1. Cabell v. Vaughan, Ibid. 291. n. 4. (k) Bidwell v. Lethbridge, 1 (h) 2 Vern. 99. Bac. Ab. 8 Mod. 166; S. C. 1 Stra. 553. Obligation, (D) 4. Enys v. Donnithorne, 2 Burr. 1196. (2) Clough v. Clough, 5 Ves. 717. Rowlandson, ex parte, 3 P. Wms. 405. And see Brett v. Cumberland, Cro. Jac. 523. 90. (m) Baxter v. Nichols, 4 Taunt. 3. Where the covenant is joint and several. |