WILMINGTON,

MAY TERM, 1796.

#### Sneed *v.*Mitchell’s Executors.

If one of two joint payees, endorses all his interest to the other, iliac other may maintain an action in his own name for the whole dent.

This was an action brought to recover money due upon a not'- of hand. The cote when produced, appeared to have been given by *Mitchell*to Sneed and another, jointly; and that other had endorsed upon the note a writing, purposing that he had relinquished ail his right and in-teiest in the within note to *Sneed.*

*Hill*for the Defendant,

objected, that this indorsement should not be received as evidence for the purpose now intended, namely, that of shewing the sole interest and right of action to be in *Sneed*— Sneed cannot be entitled as assignee, for both partners having one joint and entire interest, it will require the joint concurrence of b; th to transfer that interest to another — the endorsement of one only, will not transfer tits joint and entire infer'st, part of which is in his partner, to a third person *;*and *335fl)e endorsement of both is required in (be ease of a stranger, it will equidly require t.he endorsement of both, -vfijpvp the whole interest is intended to be passed to one of ihc partners as an assignee — for where tie sues as as-signee, he' must, set forth the custom of merchants *;*and there is no instance of one partner suing as assignee, tinder that custom, by virtue of an endorsement made by the other — though the Plaintiff is not named assignee in file writ, he must still state his title to sue, and make his demand in the declaration — -How will he do this in the present instance? Can he say he is entitled by this assignment? This at most only passes the interest the endorser hath, a joint interest in the whole, or an undivided moiety in the whole; but it cannot move the interest the Plaintiff had prior fn the e.mlors“tneiit. — that would remain the .same as before. If limn such endorsement can have any effect, it must he that of making the Plaintiff to hold in two distinct rights, namely, the interest he had originally, and the ,arnc quantity of interest by assign-JT>'-ní ; and in order to state his case truly in the declaration, lie nm-1 state, first, the making of the note, and his right that way: and then th<* endorsement by his partner, and his right that way. There is not any precedent, ■ Í such a declaration — as therefore this action cannot he supported by the Plaintiff, either as assignee tinker this endorseim r>t, nor yet as the or ginal payee, there being another joint payee, still alive, and who ought to have been joined in the action, I must submit whether this evidence is sufficient to be U-fi with the jury.

*Slade e contra*

Though it be in general true, that a contract made with several persons jointly, must be sued upon by all jointly, that does not hold universally ; for if some of them are satisfied, and their demands ex*in-grkswd, they need not be. matte parties. *Watson's L. Fart.*233. *Espin.*It. The suit may be supported by one c.f the partners who hath not been satisfied : and supposing this endorsement to have had no effect towards transiering the interest of the endorser to the Plaintiff, surely ii may have the effect of extinguishing the claim of (tie endorser, as against the endorsee — and as before the endorsement, the Plaintiff had an interest in the whole and in every part of this note, ho will not he after ¡he endorsement in a worse aituadon ; and being unsatisfied as to his demand, he may according to these authorities, *336support an action for it. ilad the endorser died, ihe Plaintiff might have sued in his own name undoubtedly —so when the endorser extinguishes his claim otherwise, there is the same reason the Plaintiff may sue alone — . where the contract is'made with two, there is good reason why both should sue — one of them by mismanagement or design might prejudice the interest of the other; it would be improper therefore, that one should be allowed to maintain the suit alone. This reason cannot apply in cases where the interest of one or more is extinguished: surely the remaining partners may sue, stating in their declaration the circumstances that prote the interest of the other to be extinguished. As to the assignment of both, being requisite to transfer the note to a third person, that is not exactly correct: it is usual for botli to make the assignment: but yet if one only endorse, that is a sufficient transfer. *lújd*68. *Dough*630, 653, 651. Then according to the argument used on the other side, if one can transfer to a third person, he may also transfer to the other partner, and so the Plaintiff'is entitled to sue as assignee — bur if both are requited to make a valid transfer to a third person, it will not follow that both names must be endorsed, when one of the payees is to become solely entitled, if both are consenting that will do. It is absurd, that a man should endorse to himself. It is evident in the present case, that tito endorsement of the one partner, was made by the consent of both; and (be endorsement may be said to have been made by both — the only two prisons in the world who had any interest in that note, having both consented that the whole interest thereof should be vested in one only. If the concurrence, of both w as requisite to the endorsement, such a transaction may well be considered as the transaction of both. If therefore the true reason why the law requires tin-joining of both in action, he what 1 have suggested, and will only hold where a joint interest is sti ll kepi up ; or if the endorsement of one only be sufficient to transfer the interest of two joint payees ; or if the apparent consent of two payees, be sufficient, although the name of one only appear in the endorsement, the Plaintiff is entitled to recover.

Per curiam

Each of two joint partners are entitled t.o tiie whole — 7the one may release his inlet est m the whole to the other, and that other will then be entitled to the *337whole as before; but with this .dditional circumstance, that the joinr interest of the other having how falle» off, he is entitl'd solely to the whole. This circumstance however must he stated in the declaration, otherwise the joint contract produced in evidence, will not support the Plaintiff’s claim. The court do not recollect any case like the present, though cases circumstanced like the present must very often have occurred $ but upon principle there can be no good reason why this action should not be supported. Were <bis an endorsement, of part it would not be good , for the Defendant cannot be subjected *to*more than one action by any act of the Plaintiff’s. This endorsement, if it be considered as transferring a right, causes no multiplication of actions ; the parties as to these remain precisely in *statu quo.*In truth, the endorsement by one of two joint payees, is good to transfer the whole contents of the note to an endorser, but it is not necessary to go upon this ground now. There can be no doubt but that one partner may release to the other, and leave him solely entitl'd to the money and the action — and of course, the Plaintiff is here entitled to recover. The reason why a contract made with several persons jointly, must be sued by all, is, because if they were to sue severally, they could recover only their several proportions ; no one could recover all to the exclusion of the others— and if each could recover only his proportion, then the ’Defendant upon one contract, would be subject to as ma tty suits as there were persons with whom lie made it.If one might sue alone, by the same reason, each of hem might sue alone. All this mischief is avoided by one joint action brought by all. If each one of them could sue, then either the Defendant would be doubly charged, or one of them mignt recover and receive the money to his own use without the interference, and to the total excln-siott of the others. This ' inconvenience is avoided by a joint action *;*but wherever the reason of a rule ceases, the rule will also cease. In most instances, more properly speaking, the rule extends no further than the reason of it warrants $ and wherever the case is so circumstanced, that an action by one only, will not be accompanied or followed by the mischievous consequences before mentioned,there can be no good legal objection against it that appears in the present instance. Where one cannot he in jured, by the other’s proceeding for the whole, as *338he cannot be when lie 1ms relinquished his whole demand, there is mi reason for savin# he shall not proceed alone, It injures not his companion, nor does it take from the Defendant any advantage he might have, were the action brought by both ; nor does it subject him to any of the disadvantages the law was careful to prevent, when it ordered toase Plaintiffs to sue jointly, that were, jointly concerned. The Plaintiff bad a verdict and judgment. *Vide*4 *Bac. Ab.*661. 1 *Mo.*102. *L. Ray.*340.