Munyan v. French

60 N.J.L. 12 | N.J. | 1897

The opinion of the court was delivered by

Beasley, Chief Justice.

The following facts give rise to the problem to be solved:

The two defendants, French and Fox, executed a joint money bond to the plaintiff, and while this instrument was outstanding French, becoming insolvent, made a statutory assignment for the benefit of his creditors, and that the plaintiff duly made claim thereunder by virtue of the bond in question.

The present action is against both defendants, founded on this instrument. The declaration is in the ordinary form, alleging a joint obligation in both obligors to pay the money -called for in the condition. To this declaration the defendant Fox has interposed a plea showing the assignment just stated of his co-obligor, French, and the presentation to the assignee of a claim for the moneys due on the obligation in suit.

The question thus propounded is whether the going in under this assignment by the plaintiff operated as a release of one of these joint obligors.

In the case of Administrators of Crane v. Alling, 3 Gr. 423, it was held that a release of one of the obligors in a bond executed by more than one is a release to all such obligors.

From this decision and others of the same strain, I understand that any act done by the obligee which, in law, will forever estop him from recovering judgment on the instrument, is to be taken and considered as a release without respect to the intention inducing such conduct. Thus, if the obligor should appoint one of the obligees his executor, the bond would be extinguished, even though, in his will, the .testator should manifest a purpose to keep it alive. Applying this rule to the case in hand it is manifest this action cannot be sustained.

In the statute of this state regulating assignments in favor of creditors, it is expressly declared that “ with respect to -creditors who shall come in under said assignment and exhibit their demands as aforesaid, they shall be wholly barred from having afterwards any action or suit at law or in equity •against such debtors or their representatives.”

It is obvious that, the present suit is in diametrical opposition to this prohibition. A. creditor having gone in under •the assignment is here before this court suing the assignor for the same claim. To permit the action to proceed would be judicially to permit to be done what the legislature has said .shall not be done.

There seems to be no way of overcoming this difficulty. There can be no severance of these obligors. They are sued .as joint obligors and the judgment in that respect must accord with the writ and declaration.

It may not be amiss to say that the eases cited by the counsel of the plaintiff are not deemed applicable, for they relate to a different situation; they have nothing to do with the question above decided, that the release of one joint obligor is a bar to a suit on the bond.

The demurrer must be overruled.