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WALSH v. SMYTH. 25
But, although they might be allowed to join, it was not indispen-
sably necessary that both Walsh and Casenave should have been
originally made parties to this suit. The consideration of all the
bonds was certainly one and indivisible, as regarded all the defen-
dants who held and claimed payment of them; and that considera-
tion, being joint, when put in issue, must stand or fall as regards
them all. The relief, however, asked by Walsh and Casenave, was
not so necessarily and indissolubly conjoined; they did not de-
rive their title through a conveyance from several, some of whom
were not parties to the suit; (m) nor did they or either of them
ask the distribution of a fund in which they or either of them,
with others, claimed a right to participate, (n) Either of them,
without prejudice to the other, might have waived the benefit of
any substantial ground of relief in this case, of which, both might
have taken advantage. If their bonds had been tainted with
usury, a plea of usury sustained in favour of one would not, of
itself, be a bar to a recovery against the other, who did not choose
to rely on any such defence, (o) Where a party rests his right
to relief or recovery against several upon the validity of a claim or
consideration, which is inseparably common to them all, in such
case the decree would be palpably inconsistent which should grant
relief against one and not against another, upon the ground that
the same claim or consideration was good as to one and bad as to
another, (p) But where several obligors have a ground of relief or
defence of which all may take advantage, that relief or defence
may certainly be asserted or waived by any one without prejudice
to another of them, (q) So here, if the consideration of this pur-
chase bad so failed as to enable both Walsh and Casenave to claim
a return of the purchase money from Smyth and Lynch, the court
might grant relief, or sustain the defence of both, or of either Walsh
or Casenave as against Smyth and Lynch; but as Smyth and Lynch
must claim together under the same consideration, its invalidity
must be established as to each, since the court must, upon that
ground, grant the same relief to both of them.
Hence as Walsh and Casenave might each be relieved separately
without prejudice to the other, or to the interests of these defen-
dants, it was not indispensably necessary, that they should both
(m) Dandridge v. Washington, 2 Peters, 376.—(n) Hunt v. Wickliffe, 2 Peters,
215,—(o) Selwyn's N. P. 582. (p) Lingan v. Henderson, 1 Bland, 286. - (q)
Whetcroft v. Christee, 4 H. and McH. 387.
4 v.3
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