The main ground of the demurrer put in to the plaintiffs' declaration is, that the suit is brought in the names of onlytwo of the five obligees named in the bond, insisting that a suit upon this bond cannot be sustained by an individual creditor named as an obligee, in his own name, without joining the others, if living.
At the common law this objection would be fatal, the rule being, that in suits on bonds or deeds, all the obligees or covenantees, if alive, must join as plaintiffs in bringing the action. (Cabell v. Vaughn, 1 Saund. 291, F. note 4;S.C. 1 Vent. 34; Vernan v. Jeffreys, 2 Strange, 1146;Scott v. Godwin, 1 Bos. Pul. 74; Sorsbie v. Park, 12Mees. Wels. 146.) In cases where the covenantees have or are to have several interests or estates, and the covenant is made to and with the covenantees and cum quolibet eorum aut alteroeorum; these words make the covenant several; as if one by indenture demise Black-acre to A., and White-acre to B., and Green-acre to C., and covenant with them and either of them, that he is lawful owner of all these acres, in this case the covenant is several. But if he demise to them the three acres together, and covenant in this manner, the covenant is joint and not several, for the words, and with every of them are, in this case, only words of amplification and abundance, and do not sever the joint cause of action. (Shep. Touch 166, 5 Rep. 18) Baron Parke, in Sorsbie v. Park, said that he thought the correct rule was laid down by Gibbs, C.J. in the case of James v.Emery, (5 Price, 533,) with the qualification stated by Mr. Preston, in the note to Shepard's Touchstone, 166. That rule is, that a covenant *Page 390 will be construed to be joint or several, according to the interest of the parties appearing upon the face of the deed, if the words are capable of that construction; not that it will be construed to be several by reason of several interests, if it be expressly joint. I think that is the true distinction. In this case, although we can see from the recitals in the bond, that the obligees had separate and distinct interests, yet it is expressly joint, and the words of it will not admit it to be construed a several bond. Therefore if all the obligees are living, the action cannot be sustained by the rules of the common law in the name of any number of them less than all.
The legislature had power to alter that rule, and I think it has done so in respect to this bond. 2 R.S. 12, § 57, provides that "every such bond shall be held for the common benefit of all the attaching creditors, and may be prosecuted at any time within six months after its date, and not afterwards, by them jointly or by any one of them separately, in respect to his separate demand; and in every such action the prosecuting creditor shall establish his demand, in the same manner as in an action against the debtor;" plainly, as it seems to me, giving to each of such creditors, a separate action in his own name upon the bond for the recovery of his demands, as well as a joint action to all, at their election.
A strong argument is derived by counsel for the defendants, from the construction put upon 2 R.S. 493, in Arnold v.Tallmadge, (19 Wend. 527,) where it was held that an action upon a bond given to several attaching creditors on the discharge of a ship or vessel, pursuant to the provisions of the statute regulating proceedings for the collection of demands against ships and vessels, must be brought in the names of all the obligees. Perhaps it is not too much to say, that if that construction of that statute is correct, it must govern the decision here. Although I entertain a high respect for the opinion of the court which pronounced that opinion, I must say that I am not able to see either the propriety of the decision or soundness of the argument which led to it.
It was said that the statute did not, in terms, declare expressly in what name on the record the bond should be sued, but only *Page 391 by whom it might be prosecuted. The 15th section of the statute to which a construction was given in the case referred to provides that the bond should be held for the common benefit of all the attaching creditors, "and may be prosecuted by any ofthem jointly, or by any one of them separately, in respect to his demand."
It is obvious to me that the legislature intended, and have used words clearly expressing the intention, to allow any one of the attaching creditors to sue such bond in the joint name of all the obligees in respect to all of their demands, or in his own name in respect to his individual demand, at his election. And this construction coincides with the provisions of the subsequent sections. Section 16 requires, in a suit upon such bond, the attaching creditors respectively to state in their declaration their respective demands, c. and assign as a breach of the condition of such bond, the non-payment of the claim of such creditors. Section 17 provides that the defendants may plead as in other actions of debt on bond, and may plead to such assignment of breaches, and the same proceedings shall be had on such bond as provided by law on bonds with other conditions than for the payment of money. Section 18 provides, if it shall be found by the verdict, c. that the sum of $50 or upwards was due to any plaintiff in such suit upon any claim or demand which, c. judgment shall be rendered that such plaintiff have execution for the amount of such claim; and section 19 provides that if it shall be found that if nothing or less than $50, was due to any plaintiff in such suit, c. judgment shall be entered against such plaintiff that he take nothing by his writ, and costs shall be awarded to the defendant. There is nothing that I can discover in these provisions inconsistent with the right of any one of several attaching creditors, to sue the bond in his own name in respect to his individual demand.
And besides, it is consistent, as I think, with the object of the statute. Several individuals, strangers to each other and to each other's demand, are by force of the statute included as obligees in a single bond, with a condition to pay to each his individual demand, with costs incurred by him in procuring the attachment. Having such a bond, the legislature was fully *Page 392 aware that by the common law rule no suit could be sustained upon it for breach of the condition, except in the name of all the obligees, if living; and seeing the difficulties which any one of several obligees would have to encounter in bringing such action, and in alleging and proving a breach of the condition as applied to his co-obligees, provided a remedy by allowing each obligee to sustain separately, in his own name, an action upon the bond to recover his demand.
In my opinion the judgment of the common pleas is erroneous and should be reversed with costs, and the plaintiffs should have judgment on the demurrer.
CADY, J. also delivered an opinion in favor of reversal, and GARDINER, RUGGLES, STRONG, SHANKLAND, and HOYT, Jrs. concurred.