By the Court, Gridley, J.
I. It is objected that Rensselaer Jackson and Atwood, being joint makers of the note, and forming but one person or party, the plaintiff must recover against both; and cannot recover against one of them alone, under the pleadings and proofs. To this objection, which forms the substance of the three first points of the defendants, there are several answers. (1.) We know by the answer of Atwood that the ground of his discharge by the jury was, that the firm name was improperly used by the defendant R. Jackson; that, though a member of the firm, he was not in law a party to the note; having been made so without any authority, any more than if his name had been forged to the paper. Now, in such a case, had the plaintiff known the fact?, as they were proved, he might [42]*42have sued Jackson alone (leaving out Atwood,) and recovered against him. The question then arises, whether the code allows a judgment to be entered, in such a case, against Jackson and in favor of Atwood. This question is answered by the 136th section of the code. The two first subdivisions of this section prescribe the rule of proceeding, first, when the action is against defendants jointly indebted; secondly, against defendants severally liable ; and the third subdivision reads as follows: “ If all the defendants have been served, judgment may be taken against any, or either of them, severally, when the plaintiff would “ be entitled to judgment against such defendant or defendants, if the action had been against them, or any of them alone-.” In other words, the code allows a several judgment to be entered, whenever a several suit might have been brought,
II. Judgment was rendered against Rensselaer Jackson, because he had promised within six years ; and against the administrators of E. Jackson under the provision contained in 2 R. S. 448, § 8, which reads as follows : “ The term of eighteen months after the death of any testator or intestate shall not be deemed any part of the time limited by law for the commencement of actions against executors or administrators.” Now another objection to the recovery in this case is that the statute applies to sole debtors, and no others; and that when sued with others, the rule is the same as that applicable to the others. (1 Denio, 445. 4 T. Rep. 516.) To this objection our answer is, that before the code became a law, and in a suit at law, no action could be sustained against the executors or administrators of a deceased joint debtor. The action must have been brought against the surviving joint debtors. (1 Chit. Pl. 50. 4 Barb. 534, 5. 5 East, 201. 1 Wend. 148.) And that the present action is to all intents and purposes a several action, under the code. By the 120th section of the code “ persons severally liable, upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff.” This, say the commissioners, “ is conformable to the present statute authorizing suits against the different parties to bills and notes.” That statute preserved all the rights of the respective parties, severally, though they were allowed to be joined in one suit. And under the code (Secs. 136, 274,) we have seen that several judgments are to all intents and purposes rendered on a joint and several note. We mean by this. [44]*44that the parties who might have been served severally may make all the objections, and have all the rights accorded to them, which would have been allowable in a several suit. So, in relation to the application of the statute, the administrators of Eliphalet S. Jackson are to be regarded as if they had been sued separately, and had a several judgment against them. If they had been sued alone, on this note, (which is several as well as joint) no one can doubt that the eighteen months must have been added to the six years, to make the statute a bar. And had Rensselaer Jackson been sued separately, judgment would have passed against him, as he had renewed his promise within six years. Now it was the intent and genius of the code to authorize a joint suit, preserving the same rights and liabilities to the several parties that they would have been entitled or subject to if they had been served separately and separate judgments obtained against them. Such is the judgment in this suit; it is several, so far as to direct it to be levied of the lands and goods of R. Jackson; and against the goods and chattels of the intestate of the administrators. W e arc of opinion, therefore, that this objection is not tenable.
III. Again; it is said that no joint recovery can be had against the surviving debtors and the representatives of a deceased co-debtor. It is true that at law no action lay against the representatives of a deceased joint debtor. And it has been adjudged in this state, in the court of errors, that no action lies, in equity, against the representatives of a deceased debtor, on a joint demand, till the plaintiff has exhausted his remedy at law against the surviving debtors; and shown that they are insolvent and that the remedy is fruitless. (2 Denio, 585.) The chancellor so holds the law to be in this state, notwithstanding he concedes that the recent English cases establish a different rule. But all the judges admit that, on a joint and several
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By the Court, Gridley, J.
I. It is objected that Rensselaer Jackson and Atwood, being joint makers of the note, and forming but one person or party, the plaintiff must recover against both; and cannot recover against one of them alone, under the pleadings and proofs. To this objection, which forms the substance of the three first points of the defendants, there are several answers. (1.) We know by the answer of Atwood that the ground of his discharge by the jury was, that the firm name was improperly used by the defendant R. Jackson; that, though a member of the firm, he was not in law a party to the note; having been made so without any authority, any more than if his name had been forged to the paper. Now, in such a case, had the plaintiff known the fact?, as they were proved, he might [42]*42have sued Jackson alone (leaving out Atwood,) and recovered against him. The question then arises, whether the code allows a judgment to be entered, in such a case, against Jackson and in favor of Atwood. This question is answered by the 136th section of the code. The two first subdivisions of this section prescribe the rule of proceeding, first, when the action is against defendants jointly indebted; secondly, against defendants severally liable ; and the third subdivision reads as follows: “ If all the defendants have been served, judgment may be taken against any, or either of them, severally, when the plaintiff would “ be entitled to judgment against such defendant or defendants, if the action had been against them, or any of them alone-.” In other words, the code allows a several judgment to be entered, whenever a several suit might have been brought,
II. Judgment was rendered against Rensselaer Jackson, because he had promised within six years ; and against the administrators of E. Jackson under the provision contained in 2 R. S. 448, § 8, which reads as follows : “ The term of eighteen months after the death of any testator or intestate shall not be deemed any part of the time limited by law for the commencement of actions against executors or administrators.” Now another objection to the recovery in this case is that the statute applies to sole debtors, and no others; and that when sued with others, the rule is the same as that applicable to the others. (1 Denio, 445. 4 T. Rep. 516.) To this objection our answer is, that before the code became a law, and in a suit at law, no action could be sustained against the executors or administrators of a deceased joint debtor. The action must have been brought against the surviving joint debtors. (1 Chit. Pl. 50. 4 Barb. 534, 5. 5 East, 201. 1 Wend. 148.) And that the present action is to all intents and purposes a several action, under the code. By the 120th section of the code “ persons severally liable, upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff.” This, say the commissioners, “ is conformable to the present statute authorizing suits against the different parties to bills and notes.” That statute preserved all the rights of the respective parties, severally, though they were allowed to be joined in one suit. And under the code (Secs. 136, 274,) we have seen that several judgments are to all intents and purposes rendered on a joint and several note. We mean by this. [44]*44that the parties who might have been served severally may make all the objections, and have all the rights accorded to them, which would have been allowable in a several suit. So, in relation to the application of the statute, the administrators of Eliphalet S. Jackson are to be regarded as if they had been sued separately, and had a several judgment against them. If they had been sued alone, on this note, (which is several as well as joint) no one can doubt that the eighteen months must have been added to the six years, to make the statute a bar. And had Rensselaer Jackson been sued separately, judgment would have passed against him, as he had renewed his promise within six years. Now it was the intent and genius of the code to authorize a joint suit, preserving the same rights and liabilities to the several parties that they would have been entitled or subject to if they had been served separately and separate judgments obtained against them. Such is the judgment in this suit; it is several, so far as to direct it to be levied of the lands and goods of R. Jackson; and against the goods and chattels of the intestate of the administrators. W e arc of opinion, therefore, that this objection is not tenable.
III. Again; it is said that no joint recovery can be had against the surviving debtors and the representatives of a deceased co-debtor. It is true that at law no action lay against the representatives of a deceased joint debtor. And it has been adjudged in this state, in the court of errors, that no action lies, in equity, against the representatives of a deceased debtor, on a joint demand, till the plaintiff has exhausted his remedy at law against the surviving debtors; and shown that they are insolvent and that the remedy is fruitless. (2 Denio, 585.) The chancellor so holds the law to be in this state, notwithstanding he concedes that the recent English cases establish a different rule. But all the judges admit that, on a joint and several demand, like the one before the court, a suit will lie against both the surviving debtors and the representatives of a deceased co-debtor, without alleging the insolvency of the surviving debtors. The chancellor says, in Lawrence v. Trustees of the Leake and Watts Orphan Asylum, (2 Denio, 586, 7,) “ The question [45]*45whether a creditor of a copartnership firm, one member of which has died, can file a bill in this court against the representatives of the decedent, and the surviving members of the firm, for payment, without averring in his bill that such surviving members are insolvent, appears to be one on which the decisions in this country are in conflict with some recent decisions on the subject in England.” He afterwards says that his own opinion had been that it was necessary to show in the bill an excuse for not proceeding at law against the surviving debtors; “ but” he adds, “ when the debt was joint and several the rule was otherwise.” Judge Jewett comes to the same conclusion (Id. 589,) and says “ This is on the ground that such debt is joint, and not joint and several. In the case of joint and several debtors the rule is otherwise.” Collyer, in his treatise on Partnership, published in 1832, after reviewing the authorities, says, “ The result of these authorities is that upon the death of a partner, the creditor of the firm, unless he holds the joint and several security of the partners, has no immediate claim on the deceased partner’s estate as a separate creditor of that partner ; but only a claim through the equities of the partners themselves, which claim may be exercised in case of the insolvency of the partnership estate.” Afterwards, in several cases in the English courts of chancery, the rule is established that a resort may be had, in that court, to the representatives of the deceased partner, on the ground that in equity a partnership demand is several as well as joint. The demand in this suit is several as well as joint, and as the law stands, both here and in England, it is lawful to bring a suit in equity against both the surviving debtor and the representatives of a deceased debtor ; without alleging the insolvency of the surviving partners upon a demand which on its face is several as well as joint.
IY. We might, undoubtedly, so modify this judgment as to let it stand against the administrators of E. S. Jackson, by striking out the judgment against R. Jackson, if we had any reasonable doubt of the right of the plaintiff to maintain the judgment against both. The 330th section of the code gives us full power .to .do this. .It .enacts “ up.on.an appeal .from a judgment .or .or[46]*46der, the appellate court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties.” But we are of opinion that for the reasons we have given, there is ño error in the judgment as it was ordered at the circuit, and therefore we affirm it.
[Oneida General Term,
January 5, 1852.
Gridley, Pratt, W. F. Allen and Hubbard, Justices.]
Judgment affirmed, and new trial denied.
See Harrington v. Higham, (15 Barb. 524.)