1879 Kendall v. Hamilton. H.L. (E.) was decided had been that, by suing some he had elected to take them as his debtors to the exclusion of those whom he had not joined in the action, it would be material; for I assent to the argument that there cannot be election until there is knowledge of the right to elect. But King v. Hoare (') proceeded on the ground that the judgment being for the same cause of action, that cause of action was gone. Transivit in rem judicatam, which was a bar, partly on positive decision, and partly on the ground of public policy, that there should be an end of litigation, and that there should not be a vexatious succession of suits for the same cause of action. The basis of the judgment was that an action against one on a joint contract was an action on the same cause of action as that in an action against another of the joint contractors, or in an action against all the joint contractors on the same contract. From very early times it was the law that a contract was an entire thing, and that, therefore, all who were parties to 443] the contract *must, if alive, join as plaintiffs and must be joined as defendants. If this was not done there must be a plea in abatement (Com. Dig., Abatement, E. 12, F. 8). That very learned lawyer cites 7 Hen. 4, 6, and 20 Hen. 6, 11, as authorities for this, and probably earlier authorities might be found, but I think it unnecessary to search for them, as it has never, as far as I know, been doubted that the defendant might plead the non-joinder of his joint contractors in abatement, and in that way compel the plaintiff to join as defendants all who were parties to the joint contract and were still alive. But there was long controversy as to whether the plea in abatement was the only way in which the objection could be raised. If on the evidence it was proved that the contract was joint, it was thought that there was a variance between the proof of a joint contract with the parties to the action, and some one not a party to the action and still alive, and the allegation in the declaration which, it was thought, must be taken to be an allegation of a contract between the parties to the action and no others, and consequently that there should be a nonsuit or verdict for the defendant on the ground of variance. This, it has now been settled, is the law in cases where the objection is the non-joinder of a plaintiff; and consequently the non-joinder of a co-contractor as plaintiff was never in modern times pleaded in abatement. And it was long thought by many that the same course was open to a defendant. Such was the decision of Lord Holt () 13 M. & W., 494. Kendall v. Hamilton. 1879 H.L. (E.) and the Court of King's Bench in Boson v. Sandford ('). My Lords, I need hardly point out that if this had been still followed as law, it would have made it clear that the cause of action against the one was the same as that against all; or rather that there was no cause of action at all against the one alone, and never could be judgment against one alone; and so the point could never have risen. But it was established by a series of cases, which may be found collected in Serjeant Williams' note to Cabell v. Vaughan ('), that though all the joint contractors must be joined as codefendants, the only way of taking advantage of the nonjoinder was by a plea in abatement. The first case, in which I find this decided, was Rice v. Shute ("). The last in which I find it controverted, though unsuccessfully, was [544 Evans v. Lewis ('), in 1794. But though the mode of enforcing the joinder of all was thus cut down, it still remained the law that all ought to be joined. And consequently I cannot doubt that the judges in King v. Hoare (°) were accurate in holding that the two actions were upon the same cause of action. I cannot agree in what seems to be the opinion of the noble and learned Lord on my left (Lord Penzance) that the Judicature Act has taken away the right of the joint contractor to have the other joint contractors joined as defendants, or made it a mere matter of discretion in the court to permit it. With great deference I think that the right remains, though the mode of enforcing it is changed. I do not think the defence a meritorious one; but I think in the present case there is no great hardship. The plaintiffs had a right of recourse against Hamilton, for which they never bargained; but they did nothing inequitable in taking advantage of that which the law gave them. They have destroyed that remedy by taking a judgment against persons who turn out to be insolvent. I do not see that Hamilton does anything inequitable in taking advantage of the defence which the law gives him. The plaintiffs got a right by operation of law, without any merits of their own, by what, as far as regards them, was pure good luck. They have lost it by what was no fault of theirs, but was, as far as they were concerned, pure bad luck. If the plaintiffs were willing to take advantage of their good luck against the defendant, it seems no hardship that he should take advantage of their bad luck against them. But in such a case as King v. Hoare (), where the plain (1) 2 Salk., 440. (2) 1 Wms. Saund., 290a. (3) 5 Burr., 2611. () 1 Wms. Saund., 291 (d); Bayley on Bills, 381. See also Lord Ellenborough in Mountstephen v. Brooke, 1 B. & Ald., 226. (5) 13 M. & W., 494. Kendall v. Hamilton. H.L. (E.) 1879 tiff had contracted with the provisional committee of a company, and consequently was very uncertain how many were joint contractors, it did operate harshly. He dared not join many in the first action, for, as the law then stood, if he failed as to any one, he failed as to all; and it does seem hard that a judgment obtained under such circumstances against one should be without satisfaction a bar as to all the 545] others. This hardship is very much removed by *the provisions of the existing law, by which the plaintiff recovers judgment against those whom he proves to be his debtors, though he has joined others as defendants; he has only to pay the costs of those improperly joined. But I think that the hardness of the law, even if it exist, is a reason for altering it, not for refusing to act upon it; and I think no doubt has ever been expressed, unless perhaps in Ex parte Waterfall (), that King v. Hoare (3) does truly state the law as it existed before the Judicature Acts, and it was not doubted in the courts below, or I think seriously questioned at the bar, that it did so. But since the Judicature Act, 1873, s. 24, law and equity are to be concurrently administered. And therefore if before the passing of those acts the plaintiffs could have sued in equity on these facts, or if they could have successfully applied for an injunction to prevent the defendant from pleading this defence, they may raise the same point in this suit in the Common Pleas Division. But the Judicature Acts do not create any equity applicable to this case which did not exist before. They only enable the court to administer the equities already existing without the delay and expense formerly required. On the first argument at your Lordships' bar, Mr. Rigby, in a very excellent argument, convinced me that in cases of joint contracts there was no difference between law and equity, except in the single case of the death of one of the parties to a joint contract, where the contract was such that the maxim inter mercatores jus accrescendi locum non habet applied; but I was diffident of my opinion on a question of such pure, and I might say, technical equity; and was therefore very willing that the case should be re-argued. I have now heard the opinion of the noble and learned Lords who are conversant with the proceedings in the courts of equity, and have no diffidence in saying that I am of the same opinion. LORD GORDON: My Lords, this case is attended with very much difficulty, as is evinced by the difference of opin(1) 4 De G. & Sm., 199. (2) 13 M. & W., 494. H.L. (E.) Kendall v. Hamilton. 1879 ion expressed amongst your Lordships. *I have [546 given it my most careful consideration with the advantage I have derived from a perusal of the judgments which have been delivered by your Lordships, and I have come to the conclusion that the judgment of the Court of Appeal was right, and should be affirmed. Judgment appealed against affirmed, and appeal dismissed with costs. Lords' Journals, 28th July, 1879. Solicitors for appellants: Freshfields & Williams. See 30 Eng. R., 256 note. A claim for necessaries is merged in and extinguished by a judgment rendered in a suit upon the claim, and an action upon such a judgment is not a suit for necessaries furnished, within the meaning of R. S., chap. 86, § 55; Brown v. West, 73 Maine, 23. A manufacturing company filed a certificate reducing its capital stock, May 10, 1875. The plaintiff recovered a judgment against the company upon notes given in October, 1875, for services alleged to have been rendered prior to the filing of the certificate. In this action brought by him to enforce an alleged individual liability of the stockholders: Held, that the recovery of the judgment upon the notes estopped him from resorting to the original consideration, in order to charge the stockholders with the payment of the debt: Sutherland v. Olcott, 29 Hun, 161. If a defendant served with process, who, during the action, is adjudged a bankrupt, would avail himself of his bankruptcy as a defence to the suit, he must make application for a stay as provided by the bankrupt act. If he neglects so to do and a judgment is rendered against him, he cannot afterwards, when he has obtained his discharge, base upon it the right to enjoin such judgment, but the judg. ment will merge the original cause of action, and become a new debt, not provable against the bankrupt's estate, and wholly unaffected by the discharge McLaughlin v. MacLachlan, 12 Bradw. (Ills.), 631; Boynton v. Ball, 105 id., 627. See, Anderson v. Blumenthal, 91 N. Y., 171. A judgment against one of several 33 ENG. REP. 25 joint contractors at common law merges the contract, and thereby defeats an action thereon against the other parties thereto. But under the statute (R. S. 1256) a different rule prevails; a discontinuance may be entered as to a co-defendant not served, without affecting his liability in a subsequent action; and the same rule applies to parties who might have been made parties, but were not joined in the suit. Only such parties as are liable as indorsers, guarantors, or drawers of accepted bills are exempt from the operation of the rule above announced: Wooters v. Smith, 56 Texas, 198. The death of a joint obligor only discharges his obligation in a case where it appears that he was a mere surety, who received no obligation whatever from the joint obligation: Richardson v. Draper, 87 N. Y., 337. The defendant's testatrix guaranteed the performance of the covenants of a lease given by the plaintiff to her son, and agreed to pay any deficiency that might arise thereunder, and fully satisfy its conditions without requiring any notice of non-payment or proof of demand. Subsequently two joint notes were given for rent due upon the lease, signed by the testatrix and her son. Upon a claim made against her estate the lease and notes were proved. Held, that even if the estate of the deceased was not liable upon the notes for the reason that she had signed as a surety only, yet as it did not appear that the notes were received under an agreement that the testatrix should be discharged from liability upon her guaranty, that her liability under such guaranty continued and could be enforced after the maturity of the notes: Raynor v. Laux, 28 Hun, 35. 1879 Alexander Mitchell's Case. H.L. (Sc.) [4 Appeal Cases, 547.] H.L. (Sc.), May 20, 1879. [HOUSE OF LORDS.] 547] *CITY OF GLASGOW BANK IN LIQUIDATION. THE five following cases, besides raising the general question as to the personal liability of trustees (which was decided adversely to trustees in the test case of Muir v. City of Glasgow Bank, ante, p. 337), also raised special grounds for the deletion of the trustees' names from the list of contributories. 1. CASE OF BELL, LANG, AND OTHERS. Joint Stock Company- Unlimited Liability-Trustee-Companies Act, 1862, §. 25, 78, 154, 196—Transfer of Shares-Note of Assumption of New Trustees on Stock Ledger. In 1850 shares in the City of Glasgow Bank, which was a company registered, but not formed under the Companies Act, 1862, were transferred into the names of A. and three others as trustees and executors of a deceased truster. A. signed mandates to the bank authorizing the payment of dividends, sanctioned the purchase of additional bank stock, and signed the minutes of meetings of the trustees. On the voluntary winding-up of the company: Held, affirming the decision of the court below, that A. was rightly put on the list of contributories. Two surviving original trustees executed a deed assuming new trustees. Both new and old trustees passed an unanimous resolution to have stock standing in the names of the original trustees in the City of Glasgow Bank transferred into the names of the original and assumed trustees. A note of assumption, giving the names of all the assumed trustees, was made by the bank officials on the stock ledger following the account of the original trustees. All the trustees signed a minute of a meeting of the trustees, which stated that "Mr. Lang (one of them) tabled the scrip of the bank stock showing that the same had been transferred into the names of all the trustees original and assumed as directed at the previous meeting." At the winding-up of the company the names of the assumed trustees were placed on the list of contributories. In a petition for rectification : Held, affirming the decision of the court below, that the assumed trustees, except one, a female trustee, who had been a minor, and unmarried at the date of the resolution to transfer, were properly on the list of contributories; and declared as to the sometime minor, that her name should in hoc statu be removed from the list, without prejudice to the right of the liquidators to place thereon the names of her husband and herself in her right. 548] *2. ALEXANDER MITCHELL'S CASE. Resignation of Office by Trustee after Stoppage of Company-24 & 25 Vict. c. 84, 8. 1-30 & 31 Vict. c. 97, s. 10-Companies Act, 1862, s. 35. If directors in the fair and bona fide exercise of their powers under the company's contract, as managers of the company, and in circumstances which make it a reasonable act of management, resolve not to record future transfers which may seriusly affect and alter the liability of the partners, the resolution will be effectual, and |