16 Barb. 289 | N.Y. Sup. Ct. | 1853
Before the code, the survivor and the personal representatives of a deceased joint debtor, could not be joined as defendants, at law. The judgments were different. (Myer v. Cole, 12 John, 349. Demott v. Field, 7 Cowen, 58. Worden v. Worthington, 2 Barb. 371. 2 Saund. 117, g. n. 2 o. Herrenden v. Palmer, Hob. 88. Hall v. Huffum, 2 Lev. 228. Corner v. Shew, 3 Mees. & W. 350. Reynolds v. Reynolds, 3 Wend. 244. Grant v. Shurter, 1 Id. 148. 1 Burr. Pr. 60. 1 Chilly’s Pl. 187. Bridgen v. Park, 2 B. & C. 424. Ashby
But it is said, that this suit is authorized by the code. Persons severally liable upon the same obligation or instrument, including bills of exchange or notes, may all or any of them be included in the same action. (Code, § 120.) As to notes, &c. the statutes regulating suits upon them, (Laws of 1832, p. 489. Laws of 1835, p. 248. Laws of 1837, p. 72. Laws of 1841,
Hand, Justice.]
¡Notice to the creditors to present their claims, and a neglect by the plaintiff to do so, does not bar- his action. (2 R. S. 89, § 39,40. And see Allen v. Bishop’s Executors, 25 Wend. 414; Parker’s Executors v. Gainer’s Administrator, 17 Id. 559.) But there is no joint demand declared upon or proved against the defendants, and there can be no judgment for the plaintiff against any of the parties without an amendment making it an action against R. Ballou, or the executors of D. Ballou.
Note.—An order was entered, directing a nonsuit, but with leave to the plaintiff to amend the manner of pleading, so as to make it a suit against R. Ballou in his individual capacity; and in that case to take judgment against him alone.