55 A. 754 | R.I. | 1903
The declaration sets out a joint note by the *296 defendant and his wife, and the fact that the wife died about five and a half years before this action was brought.
The defendant files a special plea, setting up that, as the note was joint, no action can be maintained against the defendant separately.
The plaintiff demurs to the plea.
Gen. Laws cap. 233, § 17, provides that on the death of a joint contractor, unless otherwise specified in the contract, his representative may be charged as if the contract had been several instead of joint, provided that in a partnership its assets shall be first exhausted.
In Pearce v. Cooke,
The plaintiff relies on Gen. Laws cap. 233, § 21, which provides that a plaintiff may join in the same action "all or any persons severally or jointly and severally liable" . . . on a promissory note, etc.
As the purpose of this statute was to enable a plaintiff tojoin persons liable severally, or jointly and severally, we do not think it can be construed conversely to exclude joint parties. The omission of a joint party is covered by section 23, which provides that no action shall be defeated by the non-joinder of parties, but that new parties may be summoned in. This was held to be a right of a defendant in National Bank v.Galvin,
The rule in such cases is stated by Gray, C.J., in NewHaven v. Hayden,
The statute in Massachusetts was like our section 17, and it was held that administrators could not be summoned in, but must be sued separately.
The action cannot be defeated by reason of non-joinder, and in this case the administrator cannot be made a party, because section 17 provides for a separate action against such a party.
It follows, therefore, that the action was properly brought against the surviving joint contractor, and the demurrer to the plea is sustained.