D. & N. Arnold v. Tallmadge

19 Wend. 527

• Court: New York Supreme Court
• Decided: July 15, 1838
• Status: Published

Opinion

By the Court,

Co wen, J.

The principle of the demurrer in this case is, that the suit is by two of the several obligees without joining the others. It is not denied that this objection would be fatal at the common law, Ehle v. Purdy, 6 Wend. 629; and if a separate suit in the name of each obligee be admissible, such anomaly must depend for its sanction on the statute which gives this proceeding. 2 R. S. 404, 2d ed. The 15th section is mainly relied upon, which provides that “ Every such bond shall be held for the common benefit of all the attaching creditors, and may be prosecuted by any of them jointly, or by any one of them separately, in respect to his separate demand.” This section does not in terms declare expressly in what name, on the record the bond shall be sued, but only by whom it may be prosecuted. Now, if there were no other way to enforce it but by a suit in the name of the party in interest, that form of proceeding would necessarily be implied in order to prevent the statute and the bond under it being nugatory for want of á remedy. But that is not so. The bond may be sued in the names of all the obligees. The statute saying that it may be prosecuted by any of them, &c., may be entirely satisfied by allowing a suit for the benefit of part, &c., in the name of all. This would be treating all the obligees as trustees for each according to his right. And with this the subsequent sections are entirely consistent. By the next section, § 16, in the suit on such bond, the attaching creditors respectively shall state in their declaration their respective demands, &c.; by the 17th the defendants may plead ; and then, by the 18th and 19th sections, judgment is to be rendered for or against any plaintiff in such suit accordingly as it shall be found that he had or had not a lien. These provisions seem to suppose the action to be in- the names of all the obligees, in which case judgment in the ordinary course would also have been joint, costs perhaps being awarded against all for the failure of some or one. Therefore the statute severs the proceedings and judgment, so as to make the latter operate according to justice for or against each one who is required to come in with his separate claim.

We think, therefore, there is nothing in the statute to warrant this non-joinder of obligees.

Judgment for the defendant.