Caverly v. Jones

23 N.H. 573 | Superior Court of New Hampshire | 1851

Bell, J.

It is a rule of law, it is said by C. J. Richardson, in Kimball v. Wilson, 3 N. H. Rep., 101, that in personal actions, the nonsuit of one is the nonsuit of all the plaintiffs, although the rule is otherwise in real and mixed actions. We think no doubt can be entertained, that the rule is correctly stated. In this case of trespass, a nonsuit must of course be entered as to all the plaintiffs. Wilson v. Mower, 5 Mass., 411.

The counsel for both parties agree, that in personal actions tenants in common must join; and it is not questioned, that a release by one of the plaintiffs is a bar to the action; both of which points were directly in question in the case of Kimball v. Wilson. The case of the nonsuit stands manifestly on the same ground as a release. An admission by one of the plaintiffs is also evidence against his co-plaintiffs. 1 Ph. Ev., 378 ; 1 Greenl. Ev., 203, §172. The writing presented to the court in this case, contains admissions which are almost necessai’ily fatal to the case of the parties making them, and consequently to the case of all the plaintiffs. If either of these, the release, the nonsuit, or the admissions, can be excluded, the same principle would require that all of them should be rejected.

In certain cases the courts have recognized an exception to what was once the universal rule of the common law, that the acts and admissions of the plaintiff in every form, were admissible to defeat his action. If the action is brought by an assignee in the name of the assignor, or his representative, or by a person beneficially interested, in the name of one, who may be regarded as his trustee, and application is made to the court at the proper stage of the case, the court will set aside a release executed by the nominal plaintiff, as fraudulent against the party really interested; and will not permit the plaintiff to interfere with the action, to the prejudice of the party really interested. Webb v. Steele, 13 N. H. Rep., 230; Eastman v. Wright, 6 Pick., 316.

Though the decisions on this point, of most frequent occurrence, relate to cases of assignment of choses in action, yet there seems no objection to the extension of the same principle to all cases, where the release of the action, or interference with it, is in violation of any contract between the parties, and a breach of good faith.

None of the cases we have met with apply, where each of the plaintiffs has an equal interest in the claim in suit, and maintains the action, if at all, in his own right and for his own benefit, and where each has an equal right to control the suit. Eastman v. Wright, before cited.

Tenants in common, in general, are not bound to each other by any contract. Their estates are several, and, in the case of real estates, may be recovered by separate actions. Each has the right to judge for himself, whether his rights have been infringed, and what is a proper indemnity for the injury done to him, and to decide for himself, whether a suit shall be brought for the injury, and how, and to what extent it shall be prosecuted. If he prevents his co-tenants from enforcing their rights by action, by refusing unreasonably and wrongfully to permit an action to be brought in his name, and thus shelters the wrong doer, there seems no reason, why he should not be held responsible for the consequences of the wrong. Wilson v. Mower, and Eastman v. Wright, ante. On the other hand, an obstinate and irresponsible co-tenant should not have, as of course, the right to prosecute, in the name, and at the risk of his responsible co-tenants, a claim, which they think unfounded, nor to pursue it in a manner which they think unreasonable. Such use of their names for his own purposes, should clearly not be permitted, except upon the most ample and satisfactory indemnity, which was not here offered.

How far the court might have thought proper to interfere, upon a motion to reject the writing offered in this case, or to set aside a- release in a like case, if it had been shown that application had been made to the three plaintiffs, to permit their names to be used in the action for the benefit of the others, and that they had consented, upon being indemnified or otherwise, and notice of these facts given to the defendants before the making of this paper; or if it was shown, that-such application had been made, and such indemnity offered, and refused, and notice given to the defendant of these facts, and that, the action was brought for the exclusive benefit of the other plaintiffs, it is not necessary here to consider. Any fraudulent or covinous contrivance to defeat the action would present a different case from the present.

Plaintiff8 Nonsuit.