Pearson v. Parker, 3 N.H. 366

Pearson v. Parker

3 N.H. 366 | Superior Court of New Hampshire | 1826

Harris, J.

delivered the opinion of the court.

It is not now to be doubted,that,when a surety satisfies the debt of his principal by giving his sole note to the creditor, who accepts it in discharge of the original contract, it is as much a payment by him in respect to the principal, as if the money had been actually advanced.—2 N. H. Rep. 333, Willie vs. Green.—5 Mass. Rep. 299, Thatcher et a. vs. Dinsmore.—3 ditto 403, Floyd vs. Day.—11 Johns, Rep. 464, Beardsley et a. Ex’rs. vs. Root.

In the present case, it is immaterial to the defendant, ⅛ what way the plaintiff satisfied the debt, provided he were discharged from his liability to Caldwell. The defendant is, therefore, evidently liable to the plaintiffs either jointly or separately, in an action for money paid and advanced by them for his use.

The sole question then is, whether the plaintiffs are entitled to maintain a joint action.

The principles, by which this question must be decided, are well settled.

The rule is, that where different persons have distinct and separate claims, though standing in the same relative situation, or where their legal interests are several, if there be no express contract with them jointly, they must enforce their claims by several suits.—1 Chitt. Plead. 8.

Thus, if there be two persons, and each of them advance money for a third, they cannot maintain a join action ; but each must sue severally.—3 B. & P. 235, Brand et a. vs. Boulcott.—1 East 220, Birkley et a. vs. Presgrave.

Rut if the interest of several persons be joint, as that of partners, or their claim respects their joint funds, they may and ought to join. Thus if the money, which two persons pay for a third, be raised, on their joint credit, their proper' remedy for the money, so paid, is by a joint action against him, for whom the payment was made.—1 Chitt. Plead. 8, 9.—5 East 225, Osborn et a. vs. Harper.—2 D. & E. 282, Graham et a. vs. Robertson.—1 Saund. 153.—2 Saund. 116, n. 2.—3 B. P. 150, Cook et a. vs. Bacheldor.

Apply these principles to the case now under consideration, and the result is apparent. The $100 paid by the plaintiffs *370wag borrowed by Moody upon their joint credit ; and the bal-anee was satisfied by their joint note to Caldwell, in relation to this transaction, the plaintiffs may be considered as partners ; and the fund, from which the payment was made, as their common stock. Thefir interest is then joint ; and the action is properly brought in the name of both. There must, therefore, be

Judgment for the plaintiffs.