19 Wend. 643 | N.Y. Sup. Ct. | 1839
By the Court,
Where all the parties to a note or bill are joined in one action, the plaintiff, on a default by one party, as the maker, drawer, endorser or acceptor, may sever the action, and proceed to judgment against the party who suffers a default, in the same manner as though he had been sued alone. Laws, 1832, p. 489, §1,4. Laws, 1835, p. 248, § 2. But the action cannot be severed in relation to joint contractors. If there be two or more joint makers,
The undertaking of the makers in this case was several as well as joint. In general, when a plaintiff sues upon such a contract and includes all of the parties, he has made his election as to the form of the remedy, and the contract for all the purposes of the action is thence forward regarded as joint only, and the plaintiff must succeed against all of the defendants, or none. But the statutes relating to actions on notes and bills, which have introduced many anomalies, in pleadings and practice, authorize an exception in this case to the general rule. The plaintiff by suing all the parties, does not affirm that they are all joint contractors; but only that whether joint or several, he is entitled to one action against all; and then, when he afterwards wishes to sever the action, the statute relieves him from the consequence of the election which was made at the outset.
At the common law the plaintiffs must have sued all of these makers jointly, or each one separately. But under these statutes, the plaintiffs might have sued one, two, or the whole, at their election. They sued all; and then, on a default by two, proceeded to judgment against those two in the same manner as though the third had not been originally joined in the action. This was not irregular. But the defendant, Field, who swears to merits and excuses his default, must be relieved on terms.
Ordered accordingly.