Helm v. Vleet

1 Blackf. 342, 1825 Ind. LEXIS 7

Opinion

Scott, J.

This judgment is complained of on two grounds: first, because the plaintiff, in his declaration, styles himself administrator, and sets out a contract made' with himself; and, secondly, because the capias was served on both defendants, and the judgment is against one only, no notice being taken of the other. The first point presents but little difficulty. If an administrator change the nature of a debt, originally due to the intestate, by a contract made with himself, he must sue for the new debt in his own name, and not in his representative character. 3 Bos. & Pull. 10. — 1 T. R. 489. — 7 T. R. 354. In this case, the plaintiff declares on a promise made to himself, and the judgment is in his own name. His styling himself administrator maybe considered as only a descriptio personas, and does not change the nature or effect of the action, or of the judgment

(2). The second is a fatal objection. A judgment against one of two defendants, after service of the writ on both, cannot be sustained on any principle either of common law or of statute. In case of a joint and several obligation, the obligee may proceed a*gainst the obligors, jointly or severally, at his election; but if he once elect to sue them jointly, he cannot, after service of process on both, take judgment against one only. Our statute provides, instead of the English process of outlawry, that where one of several defendants named is served with the writ, and the sheriff as to the others returns non est inventus, the plaintiff may take judgment against him on whom the writ was served. This is a statutory proceeding, and is authorized only in cases where the sheriff’s return shows that the other defendant, named .in the writ, was not found. There is no such return in the case before us. The return here shows that both were found, and that the writ was served on both. The judgment is therefore erroneous, and must be reversed. Tide 7 Cranch, 194. — 1 Wash. 379. — 4 East, 589. — 1 Saund. 291, n. 4. — 5 Bac. 165 (3).

Smith, for the plaintiff. Wick, for the defendant.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the return of the writ are set aside, with costs. Cause remanded, &c.

Vide Savage v. Meriam, ante, p. 176, and note.

Vide Palmer v. Crosby, antc,p. 139, and notes.