1 But see in re Davison, 13 Q. B. D. 50.

The question whether the right under a contract is joint or otherwise, enters more intimately into the nature of the contract, and therefore is of more importance; and it is at the same time of greater difficulty.

As a contract with several persons, for the payment to them of a sum of money, is a joint contract with all, and all the payees have therein a joint interest, so that no one can sue alone for his proportion; so, the designating of the share of each will not create such a severance of interest as to sustain a several action; but all must join in an action for the whole. (d) But if the contract contains distinct grants, or promises of distinct sums to distinct payees, they would then have several interests, and certainly may, perhaps must, bring separate actions. (e)

Where there are three or more obligees or promisees, the contract, if treated as joint by any, must be treated as joint by all. In no case can two sue together, leaving the other to seek his remedy upon the same contract, by himself. (f)

If a contract which is expressly and in its very terms joint and several, be made with divers persons, but for the payparty has a beneficial interest. So if there be in one instrument a covenant with A, and another separate and distinct covenant with B, and both are for the payment of a sum of money to A, A cannot sue alone for this sum, but B must join, because otherwise the payer might be subjected to suits by both parties. (h) In general, all contracts, whether express or implied and resulting from the operation or construction of law, are joint, where the interest in them of the parties for whose benefit they are created, is joint, and separate where that interest is separate. But the interest which is thus important as a criterion is an interest in the contract, and not in any sum of money, or other benefit, to be received from it. It is a strictly legal and technical interest created by the contract, and does not depend upon the condition or state of the parties aside from the contract. (i) 1 ment * of a sum or the accruing of some other benefit to one of them only, all must join in a suit upon that contract; (g) because but one thing is to be done, and all have a legal interest in the performance of that thing, although but one other, and, in pursuance of the contract, does convey two-thirds; this is not a severance of the cause of action, and a suit may be maintained for the price against the whole. Marshall v. Smith, 15 Me. 17.

(d) Lane v. Drinkwater, 5 Tyr. 40, 1 C, M. & R. 599; Byrne v. Fitzhugh, 5 Tyr. 54, 1 C , M. & R. 613.

(e) The master of a vessel covenanted with the several part-owners and their several and respective executors, administrators, and assigns, to pay certain moneys to them and to their several and respective executors, etc, at a certain banker's, and in such parts and proportions as were set against their respective names. Upon this covenant an action was brought by the covenantees jointly. Held, on demurrer to the declaration, that the covenant was several, because otherwise no effect would be given to the words " several and respective executors," etc, and because the money was to be paid to the banker, not as an entire sum for him to make distributions, but in several proportions to the separate account of each part-owner, thus making the interest of the covenantees several.

Servante v. James, 10 B. & C. 410. See also Ford v. Bronaugh, 11 B. Mon. 14.

(f) Contra, Bro. Abr. Covenant, 49. A man covenanted with twenty, and with each of them, to make certain sea-banks; and by his not doing it the land of two was overflowed to their injury. Held by the court, that these two could have their action of covenant without the others. "Quaere," adds Brooke, " for it seems that each should bring an action by himself." The criticism of Brooke is undoubtedly well founded. It may be questioned, moreover, whether this case is authority even to give such a covenant the legitimate attributes of a several covenant. The case was cited in Slingsby's case (according to the report of the latter in 2 Leon. 47). There, A, B, and C, being parties respectively to an indenture tripartite, wherein A covenanted with B and C, et quolibet eorum, that the land which he had conveyed to B was discharged of all incumbrances, B brought a several action of covenant; and the court held, notwithstanding the case from Brooke, that C ought to have been joined.

(g) Anderson v. Martindale, 1 East, 497.

A covenant which is single in its nature, or which is for one and the same cause, and so, in strict propriety, may be called one covenant and not a cluster of covenants, can never be joint and several in respect to the covenantees. In other words, this class of covenants does not exist with respect to the parties plaintiff in an action for covenant broken; it never lies in the option of the covenantees to say whether they shall sue for the breach, jointly or severally. They must sue jointly if they can. (j) The

(h) Id.

(i) Anderson v. Martindale, 1 East, 497; English v. Blundell, 8 C. & P. 332; Lord Denman, Hopkinson v. Lee, 6 Q. B. 971, 972; Copen v. Barrows, 1 Gray, 376; Wills v. Cutler, 61 N. H.405; Hughes v. Oregon Ry. & Nav. Co., 11 Or. 437.

(j) Slingsby's case, 5 Rep. 19 a; Spencer v. Durant, Comb. 115; Eccles-ton v. Clipsham, 1 Wms. Saund. 153; Petrie v. Bury, 3 R. & C. 353; Scott v. Godwin, 1 B."& P. 67,71; Gibbs, C. J., James v. Emery, 5 Price, 533; Foley v. Addenbrooke, 4 Q. B. 197; Pollock, C. B., Parke, B.., and Rolfe, R., Keightley v. Watson, 3 Exch. 721, 723, 726."- Possibly, an exception to this rule is to be found in the case where the words of the covenant are joint and several as to the covenantees, while their interest is several. In such a case the law, perhaps, allows the covenantees, who, upon any principle of construction, clearly may sue separately, the liberty to sue jointly. See Ecleston v. Clipsham, 1 Wms. Saund. 153; Withers v. Bircham, 3 B.