North American Fire Insurance v. Handy

2 Sand. Ch. 492, 1845 N.Y. LEXIS 540, 1845 N.Y. Misc. LEXIS 44

Opinion

The Assistant Yícé-ChanGellor,

said the complainants demand against Handy and Butler’s executors was joint, and not joint and several.

As the case stood when the bill was filed and when Handy suffered it to be taken as confessed, they could take against Handy, no decree which would not go at the same time against Butler’s executors. Therefore when he suffered the bill to go by default, he was assured by the law of the court, that if Butler’s executors made out a defence, there could be no decree against him; (in this respect the remedy being like that in an action at law on a joint bond ;) and that if they failed in their defence, the decree would be joint against him and them. Either party on paying the debt, could proceed upon the foot of such a decree, to compel contribution from the other party.

The complainants having compromised with Butler’s executors under the act of 1838, can take no decree against them. And this bill does not entitle them to a separate decree against Handy.

Handy not only claims a right to litigate the demand as the case now stands, but he insists that the compromise discharges him.

Without settling the latter point, the better mode is to decree the sale, and exonerate Butler’s executors pursuant to the stipulation, and leave the complainants to their remedy at law or elsewhere, against Handy on the bond.