delivered the opinion of the court.
It is admitted that under section 161 of the Civil Code, as found in the Session Laws of 1887, it was not necessary to the maintenance of this action that an award of damages should first have been made against the principals in the injunction suit, Tabor and Smith. It is contended, however, that no action can be sustained against the sureties unless damages are assessed against all the principals, — that in no event could there be an award of damages against one of the principals only. It is claimed that the liability of Tabor and Smith is joint, not several, and that the discharge of Tabor should have worked a discontinuance of this suit.
Tabor and Smith were jointly and severally liable as principals for the wrongful suing out of the injunction, and an award of damages against either is sufficient to maintain an action against the sureties upon the undertaking. This true in the absence of the code provision, and while this provision does away with the necessity for an award of damages before bringing suit, permitting, instead, the damages to be assessed against all parties in one action, this does not change the joint and several nature of the liability. The assessment of damages against Smith would have been sufficient to maintain the action upon the undertaking, in the absence of the code provision, and so under it the discharge of Tabor does not necessarily discharge his codefendants. It was not necessary for either Smith or Tabor to sign the undertaking; their liability depended not upon the undertaking, but upon the antecedent wrongful suing out of the writ of injunction;
As Sullivan, Hall and others, on January 31,1882, became interested in the money deposited in bank, it is contended that they were necessary parties plaintiff in this action. *258We do not think that this ' claim is well founded. .The original demand being in favor of Atkinson and Chaney, they have an undoubted right to maintain the present action for the entire sum. At common law an assignment of a part of an entire claim does not give the assignee a right of action in his own name, and it has been held in a number of cases that this rule of the common law has not been changed by the reformed procedure. The present suit upon the undertaking, which has not been assigned, can only be maintained by the obligees named therein. Pomeroy’s Rem. & Rem. Rights, sec. 137; Cable v. St. Louis N. Railway Co., 21 Mo. 133; Leese v. Sherwood, 21 Cal. 151.
It is finally contended that plaintiffs ought not to recover, because, as it is said, the damages sustained were occasioned by their own act. -This contention does not appear to be well founded. By the terms of their contract with Tabor and Smith, the purchase price of the property was to have been deposited in the bank of Leadville, to the credit of plaintiffs. The money was so deposited, but by the act of Tabor and Smith it was rendered unavailable to plaintiffs and expensive litigation thereby precipitated.
The fact that plaintiffs afterwards were willing to abandon all claim to the money, provided they could recover the property deeded, or if it appears that they preferred the property rather than the money, should not defeat their right to damages. Finding that they could not obtain the- purchase price, it was natural that they should desire a reconveyance of the property. Had Tabor and Smith consented to such reconveyance, the controversy would without doubt have been adjusted upon this basis. They would not so consent. By moving for a dissolution of the injunction by which the money was tied up, Tabor and Smith confessed that the writ was wrongfully sued out, and plaintiff’s right to damages must be sustained.
The judgment will be affirmed.
Affirmed.