#### Gould Hoyt *et al. versus*Horatio Sprague and Trustees.

A cargo was shipped at New York for South America by five owners, including the master, and consigned to the master and the supercargo. The bill of lading expressed the proportions belonging to the several owners, the master’s interest being three sixteenths. At Guayaquil the cargo was sold and the proceeds invested in a cargo of cocoa, amounting to 9682 bags, and the master signed a bill of lading representing that the cocoa was shipped-by the master and the supercargo for the same persons and in the same proportions as the original cargo. Upon this bill of lading the master and supercargo assigned their interests to insurance companies in New York, in pursuance of respondentia bonds on the former cargo. Afterwards, while at Guayaquil, the master was arrested for debt, and as collateral security to R and W who had become his bail, he signed another bill of lading representing that R and W had shipped 1000 bags of cocoa, and referring to the same as a part of the 9682 bags. The whole cargo was delivered to the defendant at Gibraltar, under the first of these two bills of lading, and the 1000 bags being afterwards demanded of the master under the second and being refused, the second was protested. The defendant sold the cocoa and paid the proceeds over to the five original shippers, except the proceeds of the 1000 bags, which he re tained by the direction of R and W, to indemnify them as bail for the master. In an action by the five original shippers against the defendant, to recover the proceeds of the 1000 bags, it was *held,*that the action could not be supported, for if their interest was several, a joint action could not be sustained 3 if their interest was joint, then the insurance companies had become jointly interested and they should have been joined in the action 3 if R and *W*took a joint interest in the whole cargo, they should have been joined 5 and if they took a several interest in the 1000 bags, then the plaintiffs had no cause of action.

If one summoned under the trustee process appears at the first term and answers and charges himself as trustee, and is never afterwards examined or put to trouble or expenses, and the suit is continued and litigated between the principal parties *413*nd terminates in a judgment in favor of the defendant, the trustee is entitled to his legal taxable costs for the first term only.

Assumpsit. The plaintiffs were Gould Hoyt, John G. Coster, Edmund Smith, George G. Gardner and Joseph Smith.

The plaintiffs declared, 1. That on August 29, 1824, they employed the defendant as a commission merchant at Gibraltar, to sell for them a cargo of 4577 bags of cocoa, that the defendant effected a sale on May 30, 1825, and that he had not paid over the proceeds ;—and 2. That he had refused to account for the proceeds.

At the trial before *Wilde*J., the following facts were proved or admitted.

In March 1823, the ship Sabina sailed from New York on a trading voyage to South America. A cargo was put on board by the plaintiffs and was owned by them in the following proportions, namely, one fourth by Hoyt, one fourth by Cos ter, two sixteenths by Edmund Smith, three sixteenths by Joseph Smith, the supercargo, and three sixteenths by Gardner, the master. Bills of lading were signed by the master, by which it was represented that Hoyt was the shipper of the cargo, on account and risk of the persons before named, and in the proportions before stated, consigned to Gardner and Smith, the master and supercargo. The respective shares of the master and supercargo were under bonds of respondentia to the Ocean and Union Insurance Companies in New York, the master’s for $ 7000, and the supercargo’s for $ 7500; and by an indorsement on the bills of lading this fact appeared.

The ship was at Guayaquil in March 1824, and there a cargo of 9682 bags of cocoa, the proceeds of the cargo from New York, was obtained, and on March 17th the master signed bills of lading, by which it was represented that the supercargo and himself had shipped for Gibraltar, for account and risk of the same persons and in the same proportions as shown in the outward bills, the cocoa above mentioned, to be delivered to the shippers. Upon these bills the master and supercargo assigned their shares in the cargo to the Ocean and Union Insurance Companies, respectively, in pursuance of the respondentia bonds.

*414Prior to the sailing of the ship from Guayaquil, a merchant of that place, having a claim against Gardner, instituted legal proceedings against him, and Gardner was obliged to give bail or security to respond the result. Robinett and Wheelwright, merchants at Guayaquil, became bail for him, upon his giving them a bill of lading, dated March 24, 1824, of the following import: — “Shipped by Robinett and Wheelwright in, &c. 1000 bags of cleaned cocoa, for their account and risk, to be delivered upto Horatio Sprague, he paying freight at the rate of one dollar per bag.” The bill refers to this memorandum in the margin: — “It is understood that the 1000.bags of cocoa herein expressed, are to be delivered *pro rata*to the whole quantity shipped in the vessel.” And the following memorandum is indorsed : — “ The condition of the within bill of lading is expressed in the letter accompanying the said bill.” This letter, which is from Robinett and Wheelwright to Sprague, says ; “ Enclosed we forward you a bill of lading for 1000 bags clean cocoa, shipped by us on board the ship Sabina of New York, Capt. George G. Gardner, for his account and risk. This cocoa is given to us by Capt. Gardner in consequence of our having stood security for him in a suit now pending with a resident of this place, as collateral security.”

About the end of August 1824, the ship arrived at Gibraltar ; and all the cocoa on board went into the defendant’s hands.

On September 6, 1824, the defendant caused the bill of lading given by Gardner to Robinett and Wheelwright, to be presented to Gardner and the contents to be demanded by a notary ; to whom Gardner made answer, “ I cannot deliver this cocoa, having no such property on board, as is well known to the shippers ; ” whereupon the bill of lading was protested. Of this circumstance the defendant informed Robinett and Wheelwright by a letter dated September 10, 1824.

The defendant agreed to advance to the master $7500, which the master told him was on account of the respondentia bond to the Ocean Insurance Company, and the defendant remitted that sum to Hoyt in October 1824 ; but before it was received, the bond had been paid by Hoyt.

*415On September 9, 1824, the master and supercargo, being about to leave Gibraltar, gave a letter of instructions to the defendant, stating the proportions in which the plaintiffs were interested in the cocoa, and that the interests of the master and supercargo were under bonds of respondentia to insurance companies in New York ; that “ with respect to the advances made to the master and supercargo on their proportions of interest in the cargo, to enable them to cancel the respondentia bonds, they would make an arrangement with the defendant before they should leave Gibraltar, on the subject of interest of money and guarantee, so as to protect them from all loss that might happen on the sales of their interest in the cargo.” The defendant is also directed, when the sales shall be completed, to make up the accounts “in the names of the con cern, for their respective proportions of interest as above mentioned,” and from time to time, as he shall be in funds from sales, to remit the amount in hand to Thomas Wilson & Co. of London, “ for account of the concern in their respective proportions ” ; but as it respects the master and supercargo, they having received advances on their respective proportions of interest in the cargo, should there be a balance in their favor when the sales should be closed, the defendant is directed “ to remit such balance to them respectively to New York, instead of to London ” And the defendant is further directed to correspond with Hoyt, “ the owner of the Sabina, who is the general agent of the concern for the voyage,” and to be governed by any instructions he may receive from Hoyt in relation to the property.

The defendant received notice from Robinett and Wheelwright, that they would hold him responsible for all loss they might sustain in consequence of his neglect to obtain the contents of their bill of lading.

The defendant rendered accounts of sale of this cargo of cocoa to Hoyt, and on May 30, 1825, paid over all the proceeds then remaining in his hands, except $ 6000 retained to await the adjustment of Robinett and Wheelwright’s claim.

This suit was instituted on December 22, 1828. On April 22, 1829, Robinett and Wheelwright withdrew their claim against the defendant for the proceeds of the 1000 bags.

*416*March 4th,*1831.

A verdict was taken by. consent for the plaintiffs, subject' to the opinion of the whole Court.

Sohier, for the defendant.

The five plaintiffs were tenants in common and not joint tenants in the original cargo. They had likewise distinct interests in the cocoa, in the same proportions as in the former -cargo. So far as regards their intention, it is clear that they were to have a several control over their particular interests, and the master was responsible to each on the orders. A joint action, therefore, for the proceeds cannot be maintained.

But if at any time the plaintiffs had a right to bring a joint action, the letter of instructions to the- defendant from the master and supercargo, took away that right. It severed the joint interest, and created an implied promise to each, that the defendant would account with him severally. *Jackson*v. *Rob*inson, 3 Mason, 138 ; *Hall*v. Leigh, 8 Cranch, 50 ; *Austin*v. Walsh, 2 Mass. R. 405 ; *Baker*v. *Jewell,*6 Mass. R. 460 ; *Bunn*v. *Morris,*3 Gaines’s R. 54.

The master owned three sixteenths of the cocoa put on board at Guayaquil, being 1815 bags out of 9682 ; and he assigned to Robinett and Wheelwright 1000 bags. Jf he had a right to assign his share, Robinett and Wheelwright had a clear right to the amount pledged to them. The cargo then sailed with an additional owner introduced by the master. At Gibraltar the master denies that he has on board any cocoa belonging to Robinett and Wheelwright, but this could not deprive them of their property under the bill of lading. *Evans*v. *Marlett, 1*Ld. Raym. 271 ; *Summeril*v. *Elder,*1 Binn. 106 ; *Nathans*v. *Giles,*5 Taunt. 558 ; *Walter*v. *Ross,*2 Wash. C. C. Rep. 283; *Ryberg v. Snell,*ibid. 294.

*Fletcher,*for the plaintiffs.

It is clear that part-owners of a chattel not only may, but must join in actions *ex contractu*and actions *ex delicto*relating to such chattel. *Hart*v. *Fitzgerald,*2 Mass. R. 511 ; *Thompson*v. *Hoskins,*11 Mass. R. 419 ; *Patten*v. *Gurney,*17 Mass. R. 182 ; *Daniels*v. *Daniels,*7 Mass. R. 135 ; *Townsend*v. *Neale,*2 Campb. 191 ; *Osborne*v. *Harper,*5 East, 225 ; 1 Wms’s Saund. 291 *g;*2 Wms’s Saund. 122, note 1 ; 1 Chit. Pl. 6. The only question in the present case is, whether there has beet» eunh *417a separation of the plaintiffs’ interests as to take away the right of a joint action. To do this there must have been a manifest and intentional severance of their interests. The supposed amount furnished by the defendant to the master was an advance to be ultimately accounted for, and was not intended as a severance of the master’s interest. If the money retained by the defendant shall be lost, the master must sustain part of the loss. He is therefore still interested, and is properly joined with the other plaintiffs in this action. Had the proceeds been remitted to Wilson at London, and each party’s share been credited to him, there would have been a separation of the plaintiffs’ interests ; but the defendant was instructed to correspond with Hoyt as the general agent for the parties concerned.

Supposing the action to be right in point of form, the question is, whether the plaintiffs can recover on the merits. The bill of lading in favor of the plaintiffs was signed before the one in favor of Robinett and Wheelwright, and the property was received under it by the defendant; there was likewise on the back of it, a previous assignment of Gardner’s interest to the Ocean Insurance Company, on account of the respondentia bond. Gardner therefore had no interest to pass by the bill of lading in favor of Robinett and Wheelwright. But admitting that he had, he refused to deliver the property to the defendant under that bill of lading and the defendant merely caused the bill of lading to be protested, taking no further steps to obtain the property under it. He nevertheless received the property under the other bill of lading, and agreed to account for the proceeds to the plaintiffs.

*Sohier,*in reply, said that the respondentia bond did not pass the property to the insurance company, and if not, then Gardner was merely their debtor. If however it did pass the property, then the legal title was in them, and they ought to have been joined in the action. But at most they had only a lien, and when the bond was paid the lien was discharged, and the legal title of Robinett and Wheelwright became free from any incumbrance.

*April 6th,*1832.

Morton J.

delivered the opinion of the Court. The plaintiffs declare on a joint promise. The defendant relies on a *418mis-joinder or non-joinder of plaintiffs. By the well settled rules of pleading, no promise can be given in evidence but one to all the plaintiffs. A promise to a part of them, or a promise to the whole of them with others, will not support the action. 1 Chit. Pl. 6 ; 1 Wms’s Saund. 291 g; 2 Wms’s Saund. 122, note 1.

The defendant contends, in the *first*place, that the plaintiffs were tenants in common and not joint tenants in the cargo ; and secondly, that if they were originally joint owners of the cargo, yet there was a subsequent severance ; so that in either event the undertaking of the defendant was *several*to each of the plaintiffs, and not to all of them *jointly.*These points raise questions of some difficulty. But a short view of the case presents itself to our minds, which seems to be fatal to the action, and to render unnecessary the consideration of these questions.

The outward cargo was undoubtedly owned by the five plaintiffs, in the proportions stated in the report. The vessel proceeded to Guayaquil, where the outward cargo was disposed of and the proceeds vested in cocoa. This was shipped for Gibraltar and was there the property of the same persons and owned in the same proportions as the outward cargo Gardner and Smith, the master and supercargo, became the owners of six sixteenths, either jointly or severally. But they made an assignment of their shares or interest in the cocoa to certain insurance companies. This would seem to pass all the interest of Gardner and Smith in the cocoa, to these insurance companies. It is difficult to perceive how they had any property on board after this assignment. But the case does not stop here ; for Capt. Gardner transferred to Robinett and Wheelright a portion of his share of the cocoa. As evidence of their interest in the cargo he gave them a bill of lading, acknowledging the receipt of one thousand bags of cocoa, consigned to the defendant, “ to be delivered *pro rata*to the whole quantity shipped in the vessel.”

Now if Robinett and Wheelwright took a joint interest in the whole cargo in the proportion which one thousand bags bear to the whole, then they ought to be joined. But if they became the owners of the thousand bags, then the plaintiffs *419cannot recover, because the whole cargo with the exception of the thousand bags, appears to have been accounted for. So that let us view it in whatever light we may, the plaintiffs cannot recover.

If the different owners had a several and not a joint interest in the cargo, then the undertaking to account was several and this joint action cannot be maintained.

If they had a joint interest, then the assignment to the insurance companies gave them a joint interest with the plaintiffs, and the undertaking of the defendant was to them jointly with the plaintiffs, and so they should have been joined.

So if Robinett and Wheelwright became jointly interested in the whole cargo, they were included in the defendant’s undertaking and the action cannot be maintained without joining them.

And if they became the exclusive owners of the thousand bags, then it is clear on the merits that the plaintiffs have no right to recover.

*Verdict set aside and plaintiffs nonsuit.*

Upon a motion for costs, the following opinion was drawn up by

Shaw C. J.

After the opinion of the Court had been given in the present case, upon the principal question discussed, a question arose, whether certain trustees originally summoned in this suit, are entitled to costs, and if so, upon what principle the costs ought to be taxed..

The facts conceded are, that the defendant not being within the jurisdiction of the court personally, several persons were summoned as his trustees; that they appeared at the first term, admitted their having effects and charged themselves, and no further examination was had, or question raised upon that subject; that the suit proceeded and was contested between the principal parties, and resulted in a judgment for the defendant. .

Under these circumstances we think the trustees are entitled to costs, by force of the provision, in the 4th section of the *St.*1794, c. 65, that where the plaintiff doth not support his action against the principal, the court shall award costs *420against him in favor of such of the persons summoned as trus* tees &c- Such was the construction put upon the statute in *Cleveland*v. *Clap,*5 Mass. R. 208.

It is analogous to the general rule, that the prevailing party shall recover costs, a trustee being regarded to many purposes as a party. A trustee may appeal ; a plaintiff may appeal from a judgment discharging a trustee ; although in either case, the principal defendant is defaulted or passive. And where the plaintiff fails in his suit, it is very manifest, that the defendant can be chargeable with no expense, and of course the trustee can have no claim for costs out of the funds in his hands, being the funds of the defendant liable to no charge.

But as to the amount of costs, the Court are of opinion, that where the trustee appears at the first term and admits funds, and no interrogatories are afterwards filed, and the trustee is not again called upon, and the litigation proceeds altogether between other parties, the trustee is not entitled to costs after the first term. We think it would be unjust in principle, and required by no necessary or reasonable construction of the statute, that a trustee should be allowed costs during the whole of a protracted litigation, between other parties, in relation to which he has no concern, and can incur no responsibility.

Very different considerations will apply where the real controversy is between the attaching creditor and the trustee, and the question is, whether he is liable, upon what grounds, and for what amount. There the rights and claims of the trustee himself are not unfrequently involved, he has a direct interest, and the litigation is carried on in order to ascertain and secure his rights. This subject is alluded to and discussed, and several suggestions made as to the mode in which a trustee may indemnify himself in such cases, but no definite or practical rule laid down, in *Adams*v. *Cordis,*8 Pick. 269.

One of the cases *there*suggested, that, namely, where the plaintiff prevails in the suitj and where the trustee charges himself, so that the funds become liable to answer the debt, has been regulated by statute, providing that in such case taxable costs, with reasonable counsel fees and other necessary expenses, may be retained by the trustee out of the *421effects in his hands. *St.*1829, *c.*128, § 2. This, of course, cannot be applicable where the trustee is discharged, and where there is no fund out of which to retain his costs. There, if he has seasonably answered and is in no default, he is entitled to costs ; but the amount of costs must depend upon the circumstances of the case. Without laying down agen eral rule for all cases, which would be difficult, we are of opinion, that where the trustee appears and answers at the first term, and is never further examined or put to trouble or expenses, he is entitled to his legal taxable costs, for that term only.1

1

 But see Rev. Stat. *c.*109, § 49, 50; *Holbrook*v. *Waters,*19 Pick. 357*Crocker*v. *Baker,*18 Pick. 407.