Bucknam v. Brett

13 Abb. Pr. 119, 35 Barb. 596

Opinions

By the Court.

Footnotes

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*— Clerke, P. J.

—In actions ex contractu, where one or more of. several parties having a joint legal interest dies, whether they are or are not, in the commercial sense of the term, copartners, the action can only be maintained in the name of the survivors. So also1 in actions ex delicto, for injuries to personal property, joint-tenants and tenants in common must join;, and- where one of several parties, interested as such, dies, the action must also be in the name of the survivor or survivors alone, and the executor or administrator of the deceased cannot be joined,,nor can he sue separately. (1 Chitty’s Pl., 77.)

This is the well-known and well-established rule of common-law practice and pleading. The several part-owners of a'vessel are tenants in common; like tenants in common of other property, they must join, in an action at law, for the recovery of . damages caused by an injury to it; and, in case of the death of any part-owner after the injury is sustained, the right of action survives to the surviving part-owners, who must afterwards pay .to the personal representatives of the' deceased the value of his share; (Abbott on Shipping, Am. ed., 1846, 146.)

These rules were founded in utility. They were designed to avoid the inconvenience resulting from uniting persons who sue t in their own right, with those who sue in a representative capacity. It would- be difficult in case of a recovery against the plaintiffs, to enter a-judgment upon the verdict, the representati ves not- being liable for costs in the same manner in which the other plaintiffs are liable. The executor of a deceased person cannot be- jointly sued with the survivor, because, -if for no other reason, the executor is to be charged de bonis testatoris, and the survivor de bonis propriis, and the judgment could not be so rendered.. So, when several persons are jointly interested in the property injured, and one of them is dead, the action must be maintained in the name of the survivor; and the.exec.-utoror administrator of the deceased cannot be joined, nor can he sue separately.

.' Have .these rules of the common law been abrogated or altered by modern legislation in this State ?

The counsel for the appellant claims that%hey have been, because the statute (3 Rev. Stat., 5 ed., 202), varying the rule of the common law, in case of injury to real or personal estate, makes ■ such a cause, of action- survive, and gives to the personal representatives- of the deceased owners-the right of action.- But this enactment was evidently made, not to- enable the representatives of deceased joint-owners of .property-to be united with the survivors, but to prevent the total failure of a remedy, where the sole owner of property died before he obtained redress for any injury to it. This would be repealing a law by something worse even than implication. There is nothing to imply, even remotely, any such intent on the part of the Legislature.

He refers us also to § 111 of the Code, which says that every action must be prosecuted in the name of the real party in interest. He may, for the same purpose, with equal if not more propriety, refer us to § 119, which says: “ Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants.” But it is plain to me that these sections were not intended to contravene the rules of the common law to which I have referred. In order to have this effect, it would require something more positive and direct than the language conveys. If applicable at all, it is applicable to property held in copartnership as well as to any other kind of joint-ownership ; and, certainly, I have never heard or read that any one has ever insisted that it was necessary to join the names of the executors or administrators of a deceased member of a mercantile firm with those of the surviving members, in an ordinary common-law action, for a debt due to the firm, or for an injury to its property.

The judge was, therefore, substantially right in his ruling on this subject, although he seemed to confine the principle upon, which I have commented to a copartnership. But this, doubtless, was a mere verbal inadvertence.

With regard to the offer on behalf of the defendants to prove that Sumner Bucknam and Ezra Bucknam were indebted to the defendants at the time of issuing the'attachment, and then to claim that they were therein described as John Doe and Richard Roe, &c.,:—such evidence, if admissible at all, was not admissible under the pleadings, and the judge properly reiected it.

Judgment should be affirmed with costs.

Present, Clerke, P. J.f, Sutherland and Leonard, JJ.