Beach v. Hotchkiss

Swift, Ch. J. Where there is a joint interest, or a joint, cause of action, all the parties in interest must join in a suit to recover it; but’where a severance is made, by the party liable to the claim, by paying to one or more, his or their proportion of the debt or interest, there the others may bring their separate actions against him ; lor he has, by his own act, severed the claim. Where, in a proper matter of account, a settlement has been made, and the balance ascertained and struck, by the parties ; assumpsit will lie to recover such balance. But, in this case, it appears, that there has been no liquidation of the accounts, by the parties; and that the balance due to each has not been ascertained. The defendants have made a statement to one of the concerned, and paid him what they agreed to be his part; but no account has been rendered to the plaintiff; no agreement has been made respecting the balance ; and the accounts arc now open, liable to be contested, by the plaintiff or defendants. The plaintiff’s remedy, then, must be by bill in equity, and not by assumpsit. The other Judges were of the same opinion. Verdict and judgment to he entered for the defendants.