5 Whart. 563 | Pa. | 1840
The opinion of the Court was delivered by
The plaintiff in error was the plaintiff below, and commenced this action in debt by a writ of summons ad responden-dum against Lucas Plaines, John Shaffer and Adam Haines, which was returned ‘ served’ by the sheriff, to whom it was directed and delivered, upon John Shaffer and Adam Haines, and ‘nihil habet’ as to Lucas Haines. Shaffer and Adam Plaines appeared by their attorney, and pleaded non assumpserunt. The plaintiff’s claim was founded upon what he, in his statement, alleged was a promissory note; and that it was executed by the three defendants named in the writ. He also set out a copy of the note in his statement, in the following'words and figures:
“ North Whitehall, December 7th, 1835.
On the first day of April in the year one thousand eight hundred and thirty-seven, we, or either of us, promise to pay to Peter Biery, or bearer, the sum of seven hundred dollars, with lawful interest, without defalcation, for value received.
$700 Luoas Haines, [ l. s. ]
John Shifferstine. John Shaffer,
Adam Haines.”
The note on its face appeared to have been sealed as well as signed by Lucas Haines, but signed merely by John Shaffer and Adam Haines, without having been sealed by them; and on the trial, such appeared from the evidence to have been the fact. Whereupon the counsel for Shaffer and Adam Haines objected that they
The counsel for the plaintiff here seemed on the argument to concede that, according to the rules of the common law, this action could not be maintained upon the instrument in writing, given in evidence on the trial, against the three defendants named in the original writ. In making the concession, it would not be difficult to show that he gave up nothing which he could have claimed, with even the least hope of success, for his client. But it was contended by him, and indeed pressed with some degree of eai’hestness, that the act of assembly of 1806, passed among other things, for the purpose of regulating proceedings in courts of justice, authorised the bringing of the action jointly against the three defendants for the cause given in evidence on the trial. That act no doubt autho-rises the joining of several claims in the same action, when founded upon contracts, either express or implied, for the payment of money where they exist against the same defendant in favour of the same plaintiff; but certainly there is nothing in the act, which would seem to warrant the conclusion, that the -legislature intended to change the rules of the common law in the slightest degree as to the joinder of different persons in the same action. And if it be so, that Lucas Haines originally executed the instrument upon which the plaintiff founds his claim by setting his name and affixing his seal to it; and that John Shaffer and Adam Haines, at the same time, set their names merely thereto, declining to affix their seals: then it may be that Lucas Haines would be liable upon it, as his specialty, to the plaintiff in a separate action brought against him; and that John Shaffer and Adam Haines would be liable upon it as their notes of hand to the plaintiff, either jointly or severally in actions brought against them. In the body of the instrument it is true that the three-promise jointly-as well as severally, to pay, yet I apprehend that although according to the rules of law it cannot take effect as
The judgment is therefore affirmed.