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Wilkinson versus Sir Richard Lloyd.
THE Defendant covenanted that he would not agreé for the taking the Farm of the Excise of Beer and Ale for the County of York without the Consent of the Plaintiff and another, and the Plaintiff alone brought this Action of Covenant, and assigns for breach, the Defendants agréeing for the said Ex∣cise without his Consent, upon which the Plaintiff had a Verdict and 1000 l. damages given.
And Serjeant Pemberton moved in Arrest of Iudgment, for that an Action of Covenant would not lie in this Case by the Plaintiff alone, because he ought to have joined with the other, both of them having a joint Interest, and so is Slingsby's Case 5 Co. If a Bond is made to two joyntly and severally they must both join in an Action of Debt, so here 'tis a joint contract, and both must be Plain∣tiffs: So also if one covenants with two to pay each of them 20 l. they must both join.
'Tis true, in Slingsbies Case 'twas held if an Assurance is made to A. of White Acre, and to B. of Black Acre, and to C. of Green Acre, and a Covenant with them and every of them, these last Words make the Covenant several.
But here is nothing of a several interest, no more than that one covenants with two, that he will not join in a Lease with∣out their Consent, so that their Interest not being divided the Co∣venant shall be entire and taken according to the first Words, to be a joint Covenant; and the rather, because if the Plaintiff may maintain this Action alone, the other may bring a second Action, and the Defendant will be subject to entire damages which may be given in both.
But the Court was of another Opinion, that here was no joint Interest but that each of the Covenantees might maintain an Action for his particular damages, or otherwise one of them might be remediless; for suppose one of them had given his Con∣sent that the Defendant should farm this Excise, and had secret∣ly received some satisfaction or recompence for so doing, is it rea∣sonable that the other should lose his remedy who never did con∣sent, For which reason the Plaintiff had his Iudgment.