President of the State Bank v. Welles

20 Mass. 15

Opinion

Parker C. J.,

in giving the opinion of the Court, said in substance, it was clear that though the right of action survived against the executor of Touro, it would have been impossible to summon in the executor in the first action, for there would then have been defendants in different capacities, and the judgment must have been against one de bonis propriis and against the other de bonis testatoris.1 The question then is, whether the decease of Touro may be considered as a severance, so that the plaintiff may bring his action against the executor at the same time that the first suit is pending. There is no question but that the obligee may sue all the obligors severally on a joint and several obligation ;² the objection here is, that the first suit is pending against one in his capacity of surviver.³ We have however come to the con elusion, that the proceedings on record now show a severance, and that the action against the executor may be sustained. We see no objection to such a course on the ground of ziconvenience. Enough appears on record to show that the proceedings in the first suit have ceased to operate jointly. The judgment would be against the surviver alone, and could not be pleaded in bar to an action against the executor.

We do not see any authority which contradicts this decision. The case of Spalding v. Mure, 6 T. R. 364, which was relied on, determined only that a defendant should not be held to bail on an affidavit of a debt due from three defendants as surviving partners of another deceased, when the declaration was for a debt due from the three defendants alone. There is no doubt of the correctness of that decision, but it does not touch the point in question.

Respondsas ouster.

Footnotes

1

Toller on Executors, 475; Hall v. Huffam, 2 Lev. 228; Carth. 171; Coffin v. Cottle, 4 Pick. 454.

2

See Cutter v. Wittemore, 10 Mass. R. 442; Carter v. Carter, 2 Day, 442; 1 Wms’s Saund. 154, n. (1); Poph. 16; Rogers v. Danvers, 1 Freem. 128. On a note given by several for a sum to be paid in the following proportions, viz. ½ by A, ½ by B, ½ by C, &c., several actions must be brought by each, and not a joint action against all. M'Bean v. Todd, 2 Bibb, 320.

3

It is not unusual to declare against the survivor as such, noticing the death of his co-obligor, or co-partner. Per Le Blanc J., 2 Maule &, Sel. 25. But the survivor or his executor may be declared against without noticing the first deceased party. Richards v. Heather, 1 Barn. &. Ald. 29; Calder v Rutherford, 3 Brod. & Bingh. 302; Raborg v. The Bank of Columbia, 1 Harr & Gill, 231; Goelet v. M'Kinstry, 1 Johns. Cas. 405