28 F. Cas. 203 | S.D.N.Y. | 1875
The demurrer in this case must be overruled, witii leave to the defendants demurring to answer, on payment of costs. The bond is a joint and several bond, and not a joint bond only. The testator of the executors died, as the declaration alleges, after the breach set ■forth. It is proper, under the state practice, ■now applicable to a suit at law in this court, to sue in one suit all the parties severally liable on the bond, to enforce the several liability of each. The executors are liable x>n the bond, if their .testator was liable. He was liable, at the time of his death, on the facts set forth in the declaration. The :Suit is substantially a several suit as to the executors. If a joint suit in form it is not :Such in substance. A several judgment can be had in it, for or against the executors, in like manner as if the suit were against ■the executors alone. The form of the suit ■does not convert a several liability into a' joint liability, or a joint and several liability into one wholly joint. As the liability of the ■testator attached in his lifetime, his death did not discharge it, and his executors are liable to respond for it, in this form of suit. The -suit is, to all intents, a suit against ail the obligors in the bond. The rule, in regard to .showing the insolvency of the surviving ob-ligors, before a suit can be maintained against the representatives of a deceased obligor, has no application to a case of several liability.
