16 Barb. 33 | N.Y. Sup. Ct. | 1852
I. It is objected that Rensselaer Jackson and Atwood, being joint makers of the note, and forming but one person or party, the plaintiff must recover against both; and cannot recover against one of them alone, under the pleadings and proofs. To this objection, which forms the substance of the three first points of the defendants, there are several answers. (1.) We know by the answer of Atwood that the ground of his discharge by the jury was, that the firm name was improperly used by the defendant R. Jackson; that, though a member of the firm, he was not in law a party to the note; having been made so without any authority, any more than if his name had been forged to the paper. Now, in such a case, had the plaintiff known the fact?, as they were proved, he might
II. Judgment was rendered against Rensselaer Jackson, because he had promised within six years ; and against the administrators of E. Jackson under the provision contained in 2 R. S. 448, § 8, which reads as follows : “ The term of eighteen months after the death of any testator or intestate shall not be deemed any part of the time limited by law for the commencement of actions against executors or administrators.” Now another objection to the recovery in this case is that the statute applies to sole debtors, and no others; and that when sued with others, the rule is the same as that applicable to the others. (1 Denio, 445. 4 T. Rep. 516.) To this objection our answer is, that before the code became a law, and in a suit at law, no action could be sustained against the executors or administrators of a deceased joint debtor. The action must have been brought against the surviving joint debtors. (1 Chit. Pl. 50. 4 Barb. 534, 5. 5 East, 201. 1 Wend. 148.) And that the present action is to all intents and purposes a several action, under the code. By the 120th section of the code “ persons severally liable, upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff.” This, say the commissioners, “ is conformable to the present statute authorizing suits against the different parties to bills and notes.” That statute preserved all the rights of the respective parties, severally, though they were allowed to be joined in one suit. And under the code (Secs. 136, 274,) we have seen that several judgments are to all intents and purposes rendered on a joint and several note. We mean by this.
III. Again; it is said that no joint recovery can be had against the surviving debtors and the representatives of a deceased co-debtor. It is true that at law no action lay against the representatives of a deceased joint debtor. And it has been adjudged in this state, in the court of errors, that no action lies, in equity, against the representatives of a deceased debtor, on a joint demand, till the plaintiff has exhausted his remedy at law against the surviving debtors; and shown that they are insolvent and that the remedy is fruitless. (2 Denio, 585.) The chancellor so holds the law to be in this state, notwithstanding he concedes that the recent English cases establish a different rule. But all the judges admit that, on a joint and several demand, like the one before the court, a suit will lie against both the surviving debtors and the representatives of a deceased co-debtor, without alleging the insolvency of the surviving debtors. The chancellor says, in Lawrence v. Trustees of the Leake and Watts Orphan Asylum, (2 Denio, 586, 7,) “ The question
IY. We might, undoubtedly, so modify this judgment as to let it stand against the administrators of E. S. Jackson, by striking out the judgment against R. Jackson, if we had any reasonable doubt of the right of the plaintiff to maintain the judgment against both. The 330th section of the code gives us full power .to .do this. .It .enacts “ up.on.an appeal .from a judgment .or .or
Gridley, Pratt, W. F. Allen and Hubbard, Justices.]
Judgment affirmed, and new trial denied.
See Harrington v. Higham, (15 Barb. 524.)