Nightingale v. Scannell
Before: Heydenfeldt
Synopsis
When one partner sues for an injury to the partnership property, and makes his co-parfcner a defendant for want of his consent to join as plaintiff, the recovery must be entire for the whole injury.
The law will not tolerate a division of a joint right of action into several actions.
In such a case the partner recovering is liable to account to his co-partner defendant; and the latter being immediately interested in the event of the suit, is not, therefore, a competent witness for the plaintiff.
Qucere—Whether such non-joinder of parties plaintiff is permissible.
The opinion of the Court was delivered by Mr. Justice Heydenfeldt. Mr. Justice Terry concurred.
Where one partner sues for an injury to the partnership property, and makes his co-partner a defendant for the want of his consent to join as plaintiff, the recovery must be entire for the whole injury.
The law will not tolerate the division of a joint right of action into several actions; the whole cause of action must be determined in one, and thus avoid a multiplicity of suits. ' ®
In such case, the partner recovering is liable to account to his co-partner defendant, and the latter is interested immediately in the event of the suit, and is not therefore a competent witness for the plaintiff.
Whether such a non-joinder of the plaintiffs is within the spirit and meaning of the statute so as to be permitted, we do not mean here to decide, as the question is not raised.
Judgment reversed, and cause remanded.
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