9 N.H. 259 | Superior Court of New Hampshire | 1838
The first count in the declaration alleges that the note described in the same was made by Little and Sly-field ; and it is contended that the note produced in evidence does not sustain that count.
All that is necessary, in a signature to a bill or note, is that it imports to bind, at all events, each person who signs it. Bayley on Bills 24; 8 Pick. 56, N. E. Marine Ins.
In Smith vs. Jarves, 2 Ld. Raym. 1484, the declaration upon a note drawn by Jarves and Bailey stated, that Jarves, for himself and partner, made his note in writing with his own hand subscribed, whereby he promised for himself and partner to pay. It was objected, on demurrer, that it was not charged that Jarves had signed the note for himself and Bailey ; but the court held it sufficiently evident that Jarves did sign for himself and Bailey, and gave judgment for the plaintiff.
It is further contended, that a right of suit is lost by a previous judgment on this demand against Slyfield. This may be so, in some instances.
It is a well settled rule, that in actions for the breach of a contract, whether in assumpsit, covenant, debt, or case, a verdict or judgment cannot generally be given in a joint action against one defendant without the other. 1 Chit, Pl. 31; 1 Bos. & Pul. 73 ; 12 East 93; and it is said that where three contract jointly and separately, and the plaintiff sues two, without objection to judgment, he cannot af-terwards sue the other, having elected to consider the agreement a joint one. Hammond on Parties to Actions 230; also, that if judgment is obtained against one of two or more persons, jointly liable in a separate action against him on said contract, the plaintiff cannot afterwards proceed against the parties omitted, but must lose their security. 1 Ch. Pl. 29 ; 4 Com. Dig., Action K, 4; 13 Mass. 148, Ward vs. Johnson & al.
But these cases are all subject to exceptions, wherever the necessity of the case requires a separate suit to be brought, lu the present instance a sufficient excuse appears for the several character of the action heretofore brought against Slyfield, so as clearly not to manifest an election to proceed
In Tappan vs. Bruen, 5 Mass. 193, it is said “ to have ‘ been an immemorial practice, in the service of a writ sued ‘on a contract against two or more defendants, if some of ‘ the defendants are without the jurisdiction of the common- ‘ wealth, so that their bodies cannot be arrested, and they ‘have no usual place of abode within the state, at which ‘ summons may be left, to cause the writ to be served on the ‘defendants within the state only, and to proceed against ‘ them for the breach of the contract by all the defendants; ‘ and this practice is declared to be exceedingly convenient, ‘ from the frequency of the circumstance that joint debtors ‘ have been found to live in different states; and that, be- ‘ sides, it is said no injustice is done, because if judgment ‘had been rendered against all the debtors, the plaintiff ‘might have satisfied it out of the defendants against whom Hn fact it was recovered.”
This doctrine is also faolden in Dennett & al. vs. Chick & al., 2 Green. 191, in Maine ; and has long been practiced in this state, and may be regarded as settled here.
Judgment, therefore, having been from necessity rendered against one of the joint signers only in the former suit, it stands in the same situation as where judgment has been rendered in a suit against one signer, where the contract was joint and several; which, while it remains unsatisfied, clearly forms no bar to a suit against the other signer.
Judgment for the plaintiff.
