Eccleston and Wife, Executors of Castle, v Clipsham
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 158
COURT OF KING'S BENCH
See White v. Tyndall, 1888, 13 App. Cas. 275.
158 ECCLESTON, ETC., V. CLIPSHAM 1WM8. SA0ND. IBS. [153] de term. sancti trin. anno regni regis car. II. 20. 24. eccleston and wife, executors of castle, versus clipsham. Hil. 19 & 20 Car. II. Reg. Rol. 1296. [See White v. Tyndall, 1888, 13 App. Gas. 275.] S. C. bad]y reported in 2 Keb. 338, 339, 347, 385. S. P. Skin. 401, Saunderx v. Johnson. 1 Show. 8, Spenser v. Durant. Com. Dig. Pleader (2 V. 2). Bull. Nisi Prius, 157, 158. Though a covenant be joint and several in the terms of it, yet if the interest and cause of action be joint, the action must be brought by all the covenantees: and, on the other hand, if the interest and cause of action be several, the action may be brought by one only.(l) Covenant.-The plaintiffs declare, that by an indenture tripartite, made the 12th day of April, in the 17th year of the reign of King Charles the Second, between one (1) So though a man covenant with two or more jointly, yet if the interest and cause of action of the covenantees be several and not joint, the covenant shall be taken to be several, and each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint. 5 Rep. 8 a. Wimlham's case. Dyer, 337 b. Wotton v. Gooke. 2 Mod. 82, Wilkinson v. Lloyd. 3 Mod. 263) Tippet v. Hawkey. Bull. N. P. 157. (a). But where two persons covenaiityot?i% anti (a) 8 Taunt, 245, James v. Emery mid Another. S. P. 2 B. Moore, 195, S. C. 5 Price, 529, S. C. [3 B. & C. 254, Withers v. Bircham. 3 D. & R. 106, S. C. ; in which last case the Court said that the general rule, established by the authorities cited in the above note, is that wherever the interest of the covenantees is joint, although the covenant be in terms joint and several, the action follows the nature of the interest, and must be brought in the name of all the covenantees ; but where the interest of tha covenantees is several, they may maintain separate actions, though the language of the covenant be joint. See also 1 Cr. M. & R. 599, Lane v. Drink-water. 5 Tyrw. 48, S. C. 4 Bing. N. C. 426, Place v. Delegal. 6 Scott, 249, S. C. 6 Bing. N. C. 123, 129, Story v. Richardson. 8 Scott, 291, S. C. 6 M. & VV. 835, Poole v. Hill. 4 Scott, N. R. 743, Palmer v. Sparshott, accord. But it has been lately considered that this statement of the rule requires some qualification. See Sorsbie v. Park, and Foley v. Addenlrooke, infra, p. 155, n. (c).] Where the plaintiff, the defendant, and twelve others, tenants in common of certain lands, entered into a deed, and each one for himself only, and not for the others, covenanted to abide by the award of A., it was objected that all the parties, except the defendant, ought to have been made plaintiffs, for that each man's covenant was made with all the rest: but the Court held that the action was well brought, as each party had a separate interest. Willas, 154, Johnson v. Wilson. So, where part-owners of a ship agreed "each and every of them with the others, and each and every of them," that the ship should be under the management of one of them as husband, and that on her return an account should be taken, and the neat profits divided rateably, it was held that one part-owner might sue the ship's husband without joining the other part-owners. 13 East, 538, Owston v. Ogle. [See also 10 B. & C. 410, Servante v. James. 5 Mann. & R. 299, S. C., accord.] But where one of two eovenantees has no beneficial interest whatever, there the action must be joint; therefore, if a man covenant with A. and also with B. to pay an annuity to A. his executors and administrators during the life of B., this is a joint covenant, and upon A.'s death his executor cannot maintain an action, but the right of action survives to B. For though the covenant be separate, the legal interest is joint. 1 East, 497, Anderson v. Martindale. So, 3 Taunt. 78, Southcote v. Hoare, was decided on the same principle, and 1 Bos. & Pull. 67, Scott v. Godwin. Where a dead is inter paries the party who has the legal interest in a covenant must always sue, although the beneficial interest may be in another. 2 Brod...
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...separate demise by each tenant in common of his undivided share, and a confirmation by each of his companions: Eccleston v. Clipsham , 1 Wms. Saund. 153; 2 Rol. Abr. 64; Sheppard's Touchstone, by Preston, 85; Heatherley v. Weston , 2 Wils. 232." A lease by tenants in common operates as a de......
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