No. 2709. Book 4, tit. 7, chap. 1, sec. 2, § 2, art. 1. No. 2712. where A took the goods of B, and sold them to C, B may sue A or C, at his choice, for goods sold. (a) Art. 2.-Of liability on contracts under seal. 2709. The party to a deed, whether it be made by himself or his agent, is in general responsible as on a simple contract. But if the contract be made by an agent, and he covenants for the acts of another, though he describes himself as agent, he will be personally liable. As where he covenants in this form, “I A, agent and attorney in fact of B, do hereby covenant with C." For here the covenant is not that of B the principal, but of A, the agent or attorney. Art. 3.-Of liability on debts of record. 2710. The defendant against whom a judgment has been recovered, must, if living, be sued thereon. § 2. Of the number of defendants who must be joined. 2711. In the next place, let us inquire into the liability of several persons who have entered into a joint engagement. Art. 1.-Of the joint liabilities on simple contracts. 2712.-1. When there are several obligors or contractors in a simple express contract, the rule is that all who in terms have jointly obliged themselves, are jointly liable, whether the form was a promising together, or after a promise by one, all binding themselves to observe it. Whenever the engagement is joint and several, the parties may all be sued jointly in one action, or each may be sued separately, but the plaintiff has not the choice of suing some, less than the whole, jointly; he must sue them separately, or sue all who are jointly bound and living.(b) (a) Clarke v. Shee, Cowp. 197. (6) 1 Saund. 153, note 1; Com. Dig. Obligation, G; Bac. Ab. Obligation D 4; Covenant D. No. 2713. Book 4, tit. 7, chap. 1, sec. 2, § 2, art. 2, 3. No. 2715. 2713.-2. As instances of implied joint contract the following cases may be mentioned: where several persons, as a club, dine at a tavern, they are jointly chargeable with the entire reckoning, and not merely each for his share. (a) And where two employ an attorney to sue out a writ, there is an implied joint contract that they will pay him his fees. (b) But there may be an implied several contract, made by many, under certain circumstances. (c) On all implied contracts by a firm or partnership, all the partners must be sued. Art. 2.-Of joint liabilities on contracts under seal. 2714. The rules in relation to express joint contracts are the same with independent contracts under seal. A man will not be held to be a party to a deed, whose name is introduced into it as a co-contractor, unless he sealed and delivered it, for the execution of it by his companion without authority, is not binding on him. A joint delivery does not make that a joint deed, which in its terms is several, nor vice versa. (d) Art. 3.—Of joint liabilities on debts of record. 2715. When a judgment has been rendered, against two or more, the liability is always joint, and the original demand which is merged in it will make no difference, whether it was joint or not.(e) But a distinction must be observed between a judgment rendered on a right which becomes merged, and a judgment in scire facias, which is a mere award of execution. In the latter case the original right is not merged. Therefore, when a judgment in scire facias (a) Forster v. Taylor, 3 Campb. 49. See Wathen v. Sandys, 2 Campb. 640. (6) Ld. Raym. 127. (c) Brown v. Doyle, 3 Campb. 51. (d) 2 Roll. Ab. 148, 149. (e) King v. Hoare, 13 Mees. & W. 506. No. 2716. Book 4, tit. 7, chap. 1, sec. 2, § 2, art. 4. No. 2716. has been given against two, bail on their recognizance, debt lies afterward against one only, since it is sued on the recognizance not the judgment.(a) Art. 4.-Of the persons who cannot be joined on account of their liabilities. 2716. When, by the terms of the contract, the contractors are only severally bound, they cannot be joined in the same action, though the parties may stand in the same relative situations.(b) It must, therefore, appear upon the face of the proceedings in an action ex contractu, that their contract was joint, and the fact must be proved on the trial. If too many persons are joined, and the action cannot be supported as to some of them, it will fail as to the whole; when such defect appears upon the pleadings, the defendants may take advantage of it by demurrer, motion in arrest of judgment, or by writ of error; and when it does not appear, and the plaintiff cannot sustain his allegation by proof, he will be nonsuited upon the trial. When one of several defendants is not liable in point of law, as in the case of an infant or married woman, and he is included with those who are sued, the plaintiff will be nonsuited, because the contract at the time it was entered was not binding on them; but if one of the defendants, having been liable, becomes discharged by some after act, as by bankruptcy, the plaintiff may enter a nolle prosequi as to him. When the action is brought only against the persons who are responsible in point of law, and the defendants plead in abatement the non-joinder of such a person, as an infant or a feme covert, the plaintiff may reply the infancy or coverture. (a) Williams v. Green, 8 Mod. 295; Gee v. Fane, 1 Lev. 225. No. 2717. Book 4, tit. 7, chap. 1, sec. 2, § 3, art. 1, 2. No. 2719. § 3. When a female obligor marries. 2717. By her marriage, the legal existence of a married woman is merged in that of her husband, so that she cannot defend any action brought against her on her contract, and when a suit is brought against her alone, she must plead her coverture. When she marries pending an action against her the suit does not abate, but goes on as if nothing had happened, for she shall not be able to defeat the plaintiff by her own act. This head will be divided by considering, 1, when the husband and wife must be joined; 2, when the husband may be sued alone; 3, when the wife must be sued alone; 4, when the husband and wife may be joined or not at the election of the plaintiff; 5, who is to be sued in case of the death of the husband or wife. Art. 1.-When the husband and wife must be joined. 2718. Where the wife entered into a several contract, dum sola, she and her husband must be joined in an action for a breach of it; and where she is a joint obligee with others, she and her husband must be joined in actions for the breach of such joint contract. As the wife can make no valid contract, during the coverture, without her husband's authority, it follows that she cannot be joined with her husband as a defendant in an action on such contract. For causes in alieno jure where the wife alone represents the estate from which they are due, she must be joined as co-defendant. Art. 2.—When the husband may be sued alone. 2719. When the wife cannot be considered either in person or property as creating the cause of action, as in the case of a mere personal contract during No. 2720. Book 4, tit. 7, chap. 1, sec. 2, § 3, art. 3, 4. No. 2721. coverture, even when made exclusively for her benefit, the husband must be sued alone; as when, in consequence of the misconduct of her husband, the wife is compelled to buy goods which are within the meaning of necessaries of life; the husband is liable in those cases, although he may have given notice to the tradesmen not to trust her. The term necessaries is not confined to the mere necessities of life, but includes such ornaments and superfluities of dress as are usually worn by women of the rank and appearance of the defendant's wife, or rather that which he allows her to assume.(a) But in case the wife is in fault, as if she goes away with an adulterer, the husband will not be liable. Art. 3.-When the wife may be sued alone. 2720. When the husband is civiliter mortuus, the wife may be sued alone, upon her own contracts made dum sola, for otherwise the creditor would have no remedy. Art. 4.-When the husband and wife may be joined at the election of the plaintiff. 2721. The husband and wife may be joined in a case where the contract was made by the wife before the coverture, although the husband may afterward, upon a new consideration, as forbearance, have agreed to pay the debt; and he may be sued alone upon such new promise. (b) And when rent becomes due by the wife, on a lease made to her, or there is a breach of covenant during the coverture, the action may be against both, or the husband alone.(c) (a) Waithman v. Wakefield, 1 Camp. 120. (b) Drue v. Thorn, Alleyn, 73. (c) Com. Dig. Baron & Feme, Y, |