Bloodgood v. Faxon

24 Wend. 384

• Court: New York Supreme Court
• Decided: October 15, 1840
• Status: Published

Opinion

By the Court,

Nelson, Ch. J,

The learned judge was right in refusing a recovery against either of the defendants on the note of 19th November.

Under the statute allowing a joint suit against the maker and endorser, the recovery may be joint, or several, but in either case it must be confined to the bill of exchange or note of which a copy was given with the declaration. The suit is a creature of the statute, which expressly restricts the proceedings to such instrument. 2 R. S. 274, § 6, 7. Without it, the plaintiff would be bound to prove a joint indebtedness against all the defendants. He must recover against all or none. The act has qualified this rule in suits against maker and endorser, but only in cases where that relation exists between the defendants in respect to the subject matter of the suit, and a copy of the instrument given. Beyond such a case the plaintiff cannot sever the defendants. He would conflict With the familiar rule above stated.

, I agree, he may recover against all independently of the statute, upon his common counts, if he prove a joint indebtedness. But he must stand upon the statute if he expects to succeed only against a part of the defendants.

In this case, however, the judge should have directed a verdict against Faxon. There was no valid defence to the note declared on as to him. He proved the usury as a witness for Barnes. His testimony cannot benefit himself.

New trial granted as to Faxon; costs to abide the event.