25 Miss. 535 | Miss. | 1853
delivered the opinion of the court.
Several of the points presented by this record were decided in the case of Silas Steen, Adm'r, v. Silas L. Steen et al., [ante, 513,] and it is not necessary, therefore, to notice them again.
This action is brought on the bond of William Steen, as administrator of Robert Steen, deceased, against Silas Steen, the administrator of William Steen, deceased, and the sureties
It is admitted by the counsel for the plaintiff in error, that if this bond was joint only, the action could be maintained by virtue of the statutory provisions on that subject. Hutch. Co. 836, § 25.
But it is said, that section does not apply to joint and several obligations. It will be seen, however, that section twenty-six of the same statute declares, that “ every joint bond, covenant, bill, or promissory note, shall be deemed and construed to have the same effect in law as a joint or several bond, covenant, bill, or promissory note.”
This statute abolishes, in our opinion, all distinction in the remedies which a party is entitled to upon a joint or joint and several obligation; and if he could sue the administrator of a deceased obligor, and the survivors in the same action, where the obligation is joint in form, but in legal effect joint and several, there is no reason why the same action may not be maintained in an obligation which is in form joint and several.
That such a suit may be maintained on an obligation joint in form, has been decided by 5 S. & M. 110.
Secondly. It is said that there is no sufficient breach of the administrator’s bond, and, therefore, the judgment should be reversed. This objection, in our opinion, would be good, but for an agreement in the record, by which it was agreed that the cause was submitted in the court below “ upon its merits, to be decided upon the pleadings, without any technical objections thereto by either party; and if the pleadings should be found defective, they shall be considered as amended by the party, according to the law and evidence as presented in the record.”
We are satisfied, that on the evidence as contained in the record, a breach of the administration bond had taken place, and that the same, by an amendment of the pleadings, could have been assigned; and as we are to treat the amendments as made which in law could be made, we are compelled to disregard this assignment of error.
The administration bond .in this case was executed on the 22d February, 1837, before the above law was passed.
We could not apply the statute to this case, without giving it a retrospective application, and also enlarging the contract of the sureties.
When they became bound as sureties of William Steen, there was no law imposing such, a penalty; nor do we think that the court can now impose any additional burden upon them, not undertaken by them at the time they entered into the bond. The judgment of the court below will, therefore, be reversed as to the ten per cent, damages, but allowed to stand as to balance.