Joint trustees are not necessarily liable for each other, or bound by each other's acts. Each is liable for the acts of others, only so far as he concurred in them, or connived at them, actively or negligently. Each is, in general, responsible only for money which he has himself received; and if he signs a receipt with the others, because the receipt would have no force without his signature, he may, at least in equity (unless he is himself in default), show that he did not receive the money, and thus remove or limit his liability; but if this be not shown, the joint receipt is evidence against all. (q) A trustee may thus * explain * 30

(l) Johns v. Dodsworth, Cro. C. 192; Walsh v. Bishop, Cro. C. 243; Heydon's Case, 11 Rep. 5: Halsey v. Woodruff, 9 Pick. 555; Rodney v. Strode, Carth. 19.

(m) Ward v. Johnson, L3 Mass. 152.

(n) Roberston v. Smith, 18 Johns. 459.

(o) Twopenny v. Young, 3 B. & C. 211; s. c. 5 Dow. & R. 201; Lancaster v. Harrison, 4 Mo. & P 561; s. c. 6 Ring. 726; Solly v. Forbes, 2 Br. & B. 38, North v. Wakefield, 13 Q. B. 536. See post, p. * 285.

(p) Anderson v. Turnpike Co., 16 Johns. 87; Clark v. Dinsmore, 5 N. H. 136; Rayne v. Orton, Cro. E. 305; Lynn v. Bruce," 2 H. Bl. 317.

(q) Fellows v. Mitchell, 1 P. Wms. 83, and Cox's note; Westly v. Clarke, 1 Eden, 360; Griffin v. Macaulay, 7 Gratt. 476. See Rider Life Raft Co. v Roach, 97 N. Y. 378.

his receipt, because he is obliged to join with the others in giving one; but a co-executor not being under this necessity, it is said that he is bound by the receipt he signs. (r) And, in general, any co-executor or co-trustee who does jointly with the others any act which it is not necessary for him to do, is bound thereby to any party who shall suffer therefrom. (s)

If two or more persons are bound jointly to pay a sum of money, and one of them dies, at common law his death not only severs the joinder, but terminates the liability which belonged to him, so that it cannot be enforced against his representatives; (t) but if they were bound jointly and severally, the death of one has not this effect. (u) If bound jointly, the whole debt becomes the debt of the survivors alone, and if they pay the whole, they can have at law no contribution against the representatives of the deceased, because this would be an indirect revival of a liability which death has wholly terminated. (v) But where the debt was made joint by fraud or error, equity will relieve by granting contribution; as it will if the debt were for money lent to both and received by both, so that both actually participate in the benefit. (w) If the last survivor dies, leaving the debt unpaid, his representatives alone are chargeable, and have no contribution against the representatives of the other deceased obligor.

Such were the rules of the common law; but in most of the United States these rules are changed by statute. The representatives of the deceased continue to be bound by his obligation. If the debtors were jointly bound, the creditor could bring but one action when all were alive, and that against all; and then obtaining judgment and taking out execution against all, he might levy it on all or either as he chose, leaving them to adjust their proportion by contribution. After the death of a * joint debtor, the creditor cannot join the survivors and the representatives of the deceased in one action, even if the statute gives the creditor, where one of many joint debtors dies, the same remedy by action as if the contract were joint and several; inasmuch as an executor cannot be joined with the survivors in an action upon a contract which was originally joint and several, because one would be charged de bonis testatoris, and the other de bonis propriis, which cannot be; (x) but the creditor may elect which to sue. (y) He may sue either, or both, in distinct actions, and may levy his executions upon either or both. But he can get, in the whole, only the amount of his debt; and the survivors and the representatives of the deceased, or the representatives of all the debtors, if all are deceased, have against each other a claim for contribution, if either pay more than a due proportion. (2)

(r) Sadler v. Hobbs, 2 Br. Ch. 114; Chambers v. Minchin, 7 Ves. 198.

(s) Brice v. Stokes, 11 Ves. 319; Sadler v. Hobbs, 2 Br. Ch. 95, and note to Am. ed.

(t) Bac. Abr. Obligations, D. 4; Osborne v. Crosbern, 1 Sid. 238; Calder v. Rutherford, 3 Br. & B. 302; Foster v.

Hooper, 2 Mass. 572; Yorks v. Peck, 14 Barb. 644.

(u) Towers v. Moore, 2 Vern. 99; May v. Woodward, Freem. 248.

(v) See note (e), p. 32 post.

(w) Waters v. Riley, 2 Har. & G. 313; Simpson v. Vaughan, 2 Atk. 33; Yorks v. Peck, 14 Barb. 644.

If one or more of several joint obligees die, the right of action is solely in the survivors, and if all die, the action must be brought by the representatives of the last survivor. (a) But if the right under the contract be several, the representatives of the deceased party may sue, although the other obligees are living. (J)