
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1812.
    William Sims v. William Tyre.
    If ,.a contract be made with two pers.ons, they must join in the action; or no recovery can be had on the contract.
    It appeared that the son of the defendant, as the agent of his father, had aided ii removing a Major Ming from Virginia, on a consideration that he was to be loaded back to Virginia with cotton. On his arrival here, he received a load -of cotton of the plaintiff, weighing about 1814 pounds, and gave the following receipt “ Received of James Ming and William Sims, eighteen hundred and fourteen pounds of cotton, to be delivered, according to direc-l*ons ^rom James Ming, in writing, to Samuel Shelton and others. Dec. 22d, 1808. Signe d Wm. Tyre.” The instructions were as follows: “ Mr. William Tyre, will please to deliver to his father, at home, two hundred weight of cotton, also lodge at Numno one hundred weight, for Captain Woodson, and twenty-five for Mr. Dabney, and carry the balance to Samuel Shelton, in Warren. Signed, James Ming.”
    The defendant was to have ten shillings a day, Virginia currency, and the day’s drive computed at twenty miles ; and to be found all necessary provisions; and he was to be paid in cotton, at what it would sell for in the neighborhood in which he lived in Virginia. He received twenty dollars in part of the freight back to Virginia. When, the cotton was carried to Shelton, defendant demanded payment for the debt, which Ming owed him, but which Shelton refused to pay ; he then retained four hundred and seven pound of the cotton, and delivered the rest to Shelton. The smaller parcels were delivered agreeably to the instructions. It was proved on the part of the defendant, that Sims had said he let Ming have the cotton. The judge charged the jury to find for the plaintiff, and they found for him one hundred dollars. The defendant moves for a new trial, on the following grounds: Í. That the receipt given by Wm Tyre, Jr., for cotton, and the instructions given form a new contract, differing from that entered into between defendant and Ming in Virginia! 2. That should the defendant be liable, the action should have been brought in the joint name of Ming and Sims, the receipt being given to them jointly.
   Colcock, J.

As to the first ground, I do not think the defendant can maintain it, for the son was unquestionably his agent, to perform the contract originally entered into between the father and Ming. The wagon and team were proved to have belonged to the father, and the defendant is therefore liable, if there be any cause of action.

On the second ground, I am of opinion, that the plaintiff’s suit should have been brought on the written contract, in the joint names of Ming and Sims, and that no action can be supported by Sims alone, for the subject of that receipt. The^ verdict in this case would be no bar to an action brought by Ming, or by Ming and Sims. Thus the defendant might be subjected to three suits for the delivery of the cotton. The receipt was joint, and therefore the properly must be considered as belonging to them both; and if so, was liable for the carriage to Virginia. I am, therefore, of opinion, the motion should be granted.

Nott, Geimke, and Brevard, Js., concurred.  