Messrs. Brown, Campbell & Co. v. Clary, 2 N.C. 125, 1 Hayw. 125 (1794)

Sept. 1794 · North Carolina Superior Court

2 N.C. 125, 1 Hayw. 125

Messrs. Brown, Campbell & Co. v. Daniel Clary and James Craig, Adm'rs. of David Craig.

Under the act of 1789, Rev. eh. 814, sec. 4, the to be brought against both the survivor 8c the administrator of the deceased joint obligor.

An action had been brought against these Defendants jointly, for a joint debt contracted by the Defendant Cla-ry, and tiie intestate David Craig, with the Plaintiffs, pursuant to tiie act of 1789, ch. 57, sec. 5» “ And whereaS it is a rule of pmmsn htw, that in case of the death of a joint obligor, the debt Can never survive against his heirs, executors or administrators, which rule is frequently injurious and oppressive to the surviving obli-gor or obligors; to remedy which, be it enacted, that from and after the passing of-this act, jn case of the death of one or more joint obligor or obligors, the joint debt or contract shall and may survive against the heirs, executors and administrators of the deceased obligor or obligors, as well as against the survivor or survivors ; and where all the obligors shall die, the debt or contract shall survive against the heirs,- executors and administrators of all the said joint obligors; and in all cases of joint obligations or assump'tions’of co-partñers or others, entered into after the passing of .this, act, suits may be brought and prosecuted in the same manner, as if such obligations or assumptions were joint and several ; any law, usage or custom to the contrary notwithstanding;” and now the jury being empanneled, and before any evidence given, it was objected by Henderson for the Defendants — that the act iiad not so far altered the rule of the common law as to allow the bringing a suit against the survivor and the representatives of. the deceased together — by the rule of the common law,. the debt would survive against the survivor ; unless the act had expressly authorised a joint suit to be brought, it could not be done : the act says indeed the debt shall survive against the representatives of the deceased, but the meaning of that is, that the debt shall survive against them, as it did before the act against the surviving obligor, and that. was against him individually and separately 5 in the manner does it now survive against the representatives of the deceased, and gives the Plaintiff his election to sue either one or the other, not both together-— and this will breóme evident by comparing the latter part and the former of this clause together, and by considering what was the rule of the common law before — the latter part directs as to ail joint bonds or contracts ¡nade after the passing the act, they shall be considered as joint and several bonds and contracts — and what was the effect of a joint and several bond that the act refers to ? Why, the Plaintiff might proceed against all jointly, or against each severally, when all were alive, or against any one of the survivors, or against the representatives of each of the deceased severally, when some are dead, or against the. representatives of each of the deceased when all were dead — but in no instance could he proceed against the survivors, and 1 he representatives of the deceased, jointly in one action — neither can he since the act, in case of joint bonds or contracts made after the passing of it.' For with respect to them, it gives him precisely the same advantage and no other, that lie had upon a joint and several bond or contract before,’ Now there is no reason to suppose the Legislature, intended to place joint bonds or contracts made before the act, upon any other or better footing for the creditor, than those made after. Yet. it. is evident if the survivors, and the representatives of the deceased, maybe sued jointly, that the creditor has a better security upon them ; for he cannot do this upon a joint am! several bond, where some or all are dead ; nor upon a several bond, whether they be dead or living. By such a construction as the .Plaintiffs contend for, these joint bonds made before the act, iho? always considered to possess fewer advantages than a joint and several, or even a several bond, will be clothed with an advantage which neither of them possess, of enabling the creditor to bring suit against the survivors, and the executors of the deceased, jointly. And it also subjects the obligee in some instances to.greater advantages than if the bond was several, or joint and several; for in either of these cases, the Plaintiff may proceed expeditiously and without delay against any one of the obli-gors that may be immediately taken — but if the debt survives against ail tiie survivors and representatives jointly, malting taetn all as one debtor, m the contracting any sack e debt Sill’-rvivors. it not sub-iera! intent parties themselves were by tbe niÚ of tin* common law, then the Plaintiff is not at liberty to proceed, against the survivors only,'who perhaps may.be, brought into court, but he must be delayed in his suit until he has run out his process against $ic others. Thjs ac^-iiiade for the benefit of-creditors, certainly did /”*” thing — byV-puch a construction lh"~ \ives agaftst the representatives subjects tip Plain till'to disadvantbjfes' h jected to before $ which is contrary’-to the of the act.- If it survives as a joint and several bond, the survivors and the representatives of. the deceased, cannot be sued jointly j or if it survives against each severally, they cannot ho jointly sued as they are here. But if it is construed to make the debt survive against each severally, then all the inconveniences, and particularly .those intended to he removed by the act, are a voided. He may proceed against the representatives, which be could riot do before, by su.ing:them when they arc the real debtors. That injustice and oppression to the survivors (who may be only sureties) that the act complains of, will be obviated. — tins suit he will then bt log will be sue!) a suit as is brought upon a joint and several bond, as the act intended and expressed, and not such joint suit as was never brought upon a joint and several bond* — and in case of the absence of fine of the parties, he may proceed instantly against the other ; & not be delayed by the necessary formality of including both in one writ. And tye judgment that the court, gives, will be the judgment that-lias usually been given in such cases, not a complex, informal judgment against some de bonis propriis, and against others de bonis testa iis, which was tie ver known before j and which in many instances, particularly in cases of devastavit, or wrong pleading by the executors, and no goods of the testator immediately to be found, would lead *,y great confusion, and the very same mischief they intended to remedy, namely,"a leaving the whole upon the survivor, and au exemption of the testator’s estate from its proper bur-then or proportion in the first instance,

But per

Judge Williams, Judge dishe

assenting — the inconvenience before this act was, that if a man luid con - tracted a debt and procured another to become jointly bound with him as his surety, and’ then died, the debt survived against the surety only. So 'where there were j0jnt contractors, each of whom were equally |)eneg{;e(] by the contract, if one died, the whole debt feli upon the other ; and the act expresses, that for the relief of the survivor it was made. This it proposes to do, by making them all equally contributablein the first instance. This produces equality and justice immediately, and prevents circuity and multiplicity of actions — for as the rule was at the common law, the survivor paid all in the-first instance, and then was put to another suit, to get contribution from the estates of the deceased : bnt now all this is effected by suing them both together. Besides when the debt is first contracted, it is joint, and now it does not become several upon one by the death of the other; but as a joint debt lies upon the representatives : immediately upon the death of the deceased, they instantly step into his placé, sustaining the same burthen that he did — then how does the debt become several? Not by any part of this law; and surely the Plaintiff cannot by suing severally upon a joint caiise of action, make it to become several by that means. Moreover, it waS the relief of the survivor, not the benefit of the obligee, that this act sought for — but it is not an equitable relief to put it in the power of the Plaintiff to exonerate him entirely, and throw the whole burthen upon the estate of the deceased, or vice versa. No just reason can be assigned why it should lie upon the estate of the deceased wholly, any more than upon the survivor, or the reverse. As to the difficulty suggested, that no judgment can be entered up in any regular form, the court is always bonnd to give their judgment according to law; and if there is no precedent to be found conformable to the new law, the court must form one that will be so. — Et per curiam, the action is well enough brought.

Note. — Vide Davis’s ex’rs. v. Wilkinson and others, post 334, see the act of 1797, Dev. ch 475, as to how the judgment in such case is to be entered. An action may be brought against drawer and endorsers of a protested bill of exchange jointly, or against either of them, act of 179S, Rev. ch. 464. Suits may be brought against the maker of a promissory note, single bill, bond, &c. and endorsers jointly, or against any one or more of them, act of 1817, Rev ch. 937. Such suits against obligors or endorsers, shall'be consolidated, act of 1820, Rev. ch. 1046.