The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1901-05-01

parties of the first part is joint and several and H.
made is that the details of which are specified ~
clauses If paragraph stood entirely by itself e
ably be construed to that the members Of T., would
Jointly were liable for the promise there SET fo
rison certain stock upon the happening of cort gN
The paragraph, however, cannot we think bo 49,, 'Vaa
must be read in connection with the opepina s"lI
quoted and if understood the result is tbo
promise in question joint and several obigo+
of the members of the company This is the constr On
ly contended for by the plaintiff himself
Turning to statutes, Section 1922 Of tbo ~,
1897 provides ct shall be necessary to ION @ INl
civil action all the joint and several or iont nal
sorry notes. or drawers of drafts bills of excellence
joint and sereral obligors, lessees parties of the f
part to covenants, agreements and contracts IN o;
payment, non-acceptance or nonfultllment thereof =
in be necessary to all the Joint par;
process. Service of process upon one of several d
law, shall be legal service upon all for the purpose ~
ance in court, and Judgment may be entered aoanot ~
defendants thereon; provided, however that no evsen
issue against the sole property of any joint defendant
process was not duly served aforesaid" Clearly Il
language of this statute renders it necessary for the
join as defendants all of the parties of the first part
ment sued In the first count 1t is however cons
the statute must be read subject to implied ex
the case of parties out of the jurisdiction of the COM
ground that the statute is only decaraory of the comm
rule the subject and that at law the excert
existed. IF the exception referred to existed at cmmo
it is unnecessary to say this point whether it did
and if the statutory provision to be construed as b
same exception it only be the theory that the
therein intended merely to declare the common law on
iect without modification. That this was not the Intent
the Legislature however, is clear from the fact that mn
terms of the statute plaintiff may recover Judgment
all those jointly liable contract without having service
upon all of said partners who resident within the ur
The latter certainly not possible common law WI
of sufficient for declaring the statute subject
exception contended for.
Judgment debtors not within any of the classes p
section 1922. They not parties of the first Or
part to agreements or contracts" that langA
ferring, think solely to those who have voluntarily II
into such agreements and not to those upon whom u
willing, the law casts obligation pay the amount Of
ment duly rendered against them. The Requirements \
section, then, as to the jonder of all the parties do
branch of the case. 1t is the common law rule that applied
law, In an action on Judgment, it was necs
join as parties all the living Judgment debtors excepting
those out of the jurisdiction q. s. o. Cushman, Sumo
314; Gilman Rives, 10 Peters $685. 299 800; II Eng
& Pr. 49, 1920. Any expression to the contrary in B
u. Mcintyre, Haw 800, was obiter dictum The comm
rule, subject to the exception stated governs in this case
plaintiff must make all the Judgment debtors parties dd
or show excuse for not doing so.
The New Zealand judgment having been recovered y
only of the parties of the first part to the agem
foregoing decision will, view of the provision section
that "the causes of action SO united shall aHd
the parties to the action render it impossible, think
plaintiff to join the two counts in one action.
In opinion, the demurrer properly sustained up
first ground but not upon the other grounds Accounting
exceptions overruled and the case remanded the
Court of the First Judicial Circuit for such further p
may be proper not inconsistent with the foregoing
Robertson G Wilder for the plaintiff, who also aEp
person.
Mdgoon & Thompson, Kinney, Bazlou q McCldNdh1
FL. A. Bigelop for the defendants.