JAMES TODD, THOMAS WARREN, TRISTRAM G MITCHELL, WILLIAM C. MITCHELL, AND WOODBURY STORER, ADMINISTRATOR OF ISRAEL WATERHOUSE, DECEASED,

v.

CHARLES DANIEL, COMPLAINANT AND APPELLEE

Mr. Justice Story delivered the opinion of the Court.

This is an appeal from the decree of the Circuit Court for the district of Maine, in a suit in equity, in which the appellants were the original defendants. After the decree was. made, an appeal was claimed by all the defendants, and allowed by the Court. A part of the defendants who originally claimed the appeal before any further proceedings, abandoned their appeal; and thfe’residue of them, excepting Todd, have, since the session of this Court, abandoned their appeal, and Todd only has entered his appearance. But the record stands' in the names of all the defendants as parties appellant. Under these circumstances, the counsel for the appellee has moved the Court to dismiss the appeal for irregularity and want of jurisdiction, upon the ground that it cannot be maintained on behalf of Todd alone.

There is no doubt that the appeal having been deserted by all the original defendants except Todd, it must be dismissed with costs as to them. But as to Todd, very different considerations .must arise. He seeks to reverse the decree in the Court below, as erroneous in regard to himself; and the question is, whether' he is not entitled to maintain the appeal separately, for his own interest, although it is deserted by all the other defendants. We think that he is, otherwise an irreparable injury might be inflicted upon him by an erroneous decree, for which the law would not afford him any redress, The decree in this case is in fact against him as principal, and against the other defendants in aid of him, for distinct portions of the purchase-money received by them under the contract of sale made by Todd, and stated in the bill and answer. The decree may be entirely right in regard to the other defendants, and yet it may be erroneous as to Todd. He has, or at least may have, á distinct and independent interest in the controversy.in respect to which he is entitled to be heard in this Court.

The proper rule in cases of this sort,- where there are various defendants, seems to be that all the defendants affected by a joint decree, (although it may be otherwise, where the defendants have separate and distinct interests, and the decree is several, and does not jointly affect all,) should be joined in the appeal; and if any of them refuse or decline upon notice and process (in the hature of a summons, and severance in a writ of error) to' be issued in the Court below, to become parties to the appeal, then that the other defendants should be at liberty to prosecute the appeal for themselves and upon their own account; and the appeal as to the others be pronounced to be deserted, and the decree of the Court below as to them be proceeded in and executed. In the present case, what has occurred is equivalent to such proceedings. All the defendants originally claimed an appeal; some of them have declined to pursue it at all; others 'have deserted it since it was pending in this Court; and therefore, there is no pretence to say that any practical inconvenience can occur from-Todd’s now prosecuting it alone, and since the other defendants have all had notice and declined to interfere, and are content-to abide by the original decree.

In the case of Coxe and Dick v. The United States, 6 Peters, 172, no doubt was entertained" by-this Court, that a writ of error might be entertained by the defendants severally, where the judgment operated under the laws of Louisiana as a several as well as joint judgment, although thev might have united in the writ of error-; and if any one. choose not to prosecute it, the others might, upon a summons and severance, proceed'alone.

The case of Owings v. Kincannon, 7 Peters, 399, seems to have been misunderstood at the-bar.-' The objection in that case was not that one or more of the defendants might not pursue an appeal for their own interest, if the others refused to join-in it upon due notice, and process for that purpose from the Circuit Court; but that it did hot appear that all the defendants were not ready and willing to join in the appeal, and that the appéal was brought by some of the appellants without giving the others an opportunity of joining in it, for the protection of their own interests; not only against the appellee, but against the appellants, as their own interests might be distinct from, or even adverse to that of .the appellants; and it was right and proper that all the parties should have an opportunity of appearing before the Court, so that one final decree, binding upon all the parties having a. common interest, might be'pronouncedt

' Upon the whole, therefore, our opmion is, that the appeal must be.dismissed with costs against all the cieiendants except Todd, and as to him it is torbe retained for a hearing upon the merits.