* and who has sustained the damage arising from a breach.

of * the contract, and whether such damage was joint or several. (k)

The nature, and especially the entireness (l) of the consideration, is of great importance in determining whether the promise be joint or several; for if it moves from many persons jointly, the promise of repayment is joint; (m) but if from many poisons, but from each severally, there it is several. (n) Where the payment is in the first place of one sum in solido, and this is afterwards to be divided among the payees, there, generally the * interest of the payees is joint; (o) but where the first payment is in several sums among the several payees there generally their interest is several. (p) So if a sum in solido is advanced to one by many persons, the promise of repayment is a promise to all jointly; (q) but if several sums are advanced separately by each, there the promise is to each severally. (r) And if the several persons raise the sum by separate and distinct contribution; but, when raised, it is put together and advanced as one sum, there the promise of repayment is to all jointly. (s) words showing it was to be a separate covenant with each, and I think we should so hold it; consequently the plaintiff is entitled to our judgment." Platt, B., concurred in the judgment. - From the whole we may gather that the Court of Exchequer maintain the general principle that it is competent for the parties to make the contract, by express words, what they please, as well with respect to the joinder of parties as with respect to any other legal quality of the contract. The rule, carried to its extent, would permit the making of a covenant joint, or ral, or joint and several, as to the covenantors; and joint, or scveral, or joint and as to the covenantees. But the Court of Exchequer add that the rule is to be taken with this qualification, namely, that one of the six eases above enumerated is excluded by the doctrine (settled. perhaps, on authority rather than principle), that no covenant can be joint and several as to the covenantees. Of course it is not to be doubted that in this respect all contracts, whether under seal or not, are governed by the same principles.

(k) In Windham's case, 5 Hep. 7, it is stated that joint words in a grant are sometimes taken severally. 1. In respect of the several interests of the grantors; as if two tenants in common, or several tenants, join in a grant of a rent-charge, yet in law this grant shall be several. although the words are joint. 2. In respect of the several interests of the grantees, etc. 19 H. 6, 63, 64. A warranty made to two of certain lands shall enure as several warranties, in respect that they are severally seized, the one of part of the lands, and the other of the residue in severalty. 6 E. 2; Covenant. Br. 49. [15ut this case does not seem to be law, See note (m) supra.] A joint covenant taken severally in respect of the several interests of the covenantees. Vide 16 Eliz. Dyer. 337, 338 [infra, note (c)], between Sir Anthony Cook and Watton, a good case. 3. In respect that the grant cannot take effect but at several times.

4. In respect of the incapacity and impossibility of the grantees to take jointly.

5. In respect of the cause of the grant, or ratione subjectae materiae. 6. Ne res destruatur et ut evitetur absurdum.

(I) Chanter v. Leese, 5 M. & W. 698, 701: 1 Roll. Abr. 31, pl. 9.

(m) Ivans v. Draper, 1 Roll. Abr. 31, pl. 9: Winterstoke Hundred's case. Dyer, 370, a. But see Jones v. Robinson, 1 Exch. 454, infra, note (c).

(n) Bell v. Chaplain, Hardres, 321.

(o) Lane v. Drinkwater, 5 Tyr. 40; Byrne v. Fitzhugh, id. 54. (p) Thomas and---------. Styles, 461.

(q) May p. May. 1 C. & P. 44. Money advanced on the joint credit of two parties may be recovered by them in a joint action against the person for whose benefit it was paid. Osborne v. Harper, 5 East. 225.

(r) Brand v. Boulcott, 3 B. & P. 235.

(s) May v. May, 1 C. & P. 44.

Both a joint obligation or right, and a several obligation or right may coexist; for there may arise from the same contract, one joint duty to all, and also several duties to each of the parties. (t)

In analogy with the rule in the case of contracts, it is well established, that there can be no joint action for an injury, unless that injury be a joint injury to the plaintiff's. Therefore husband and wife cannot sue jointly for assault and battery of them or for slander of them. (u)

Whatever rule be adopted as the leading principle of construction the question whether the right created by a contract is joint or several must be left in any particular instance so much to mere authority, that we close the subject with a reference to the decisions collected in the note. (v)

(t) Story v. Richardson, 6 Bing. N. C. 123; Peekham v. North Parish in Haverhill, 16 Pick. 274.

(«) 9 Ed. 4, 51; Cole v. Turner, 6 Mod. 149. The husband should sue alone for the injury to him, and the husband and wife should sue jointly for the injury to her Gazinsky v. Colburn, 11 Cush. 10.

(v) It is attempted in this note to collect at least the most important cases in which the question of the propriety of the joinder of plaintiffs has been passed upon. These cases fall, it is evident, within one of four classes: Where a joint * action was held properly brought; where it was held that a several action should have been joint; where a several action was held properly brought; where it was held that a joint action should have been several: -