Hartness v. Thompson

Van Ness, J.

delivered the opinion of the court. The precise question presented by this case does not appear to have been settled by any express adjudication. We are aware, that in the cases of Chandler v. Parkes and Danks, (3 Esp. N. P. Rep. 76.) and of Jaffray v. Fretain and others, (5 Esp. 47.) which were circumstanced like the present, the plaintiffs were nonsuited. These, however, were decisions at Nisi Prius, and we are inclined to adopt a different, and, as we apprehend, a inore convenient rule. In doing so, we do not believe that we contravene any established rule of law.

In the case of Noke and Chiswell v. Ingham, (1 Wils. 90.) Denison, J. takes this distinction: “ In cases where an action is brought against several parties to a joint contract, and one pleads some plea which goes to his personal discharge, and not to the action of the writ, the plaintiff may enter a nolle prosequi as to him, and proceed against the others.” Serjeant ¥/illiams, in a note to 1 Saund. Rep. 207. a. considers this distinction a sound one, and the present case falls within the reason, though not within the words of it. When a suit is commenced against several joint debtors, upon a joint, contract, and one of them pleads or gives in evidence a matter which is a bar to the action, as against him only, and of which the others cannot take advantage, as it respects them, there can be no good reason why the plaintiff should not be at liberty to proceed to take judgment against them. The infancy of one of the defendants does not destroy the plaintiff’s right of action against the rest; and this court, in the case of Van Bramer et al. adm'rs, v. Cooper and another, (2 Johns. Rep. 279.) *162 held that infancy was a personal privilege, of which the infant alone could take advantage. Why turn the plaintiff round to another action, when perfect justice can be done in this ? The infancy of Nelson, one of the defendants, -may have been unknown to the plaintiff j and if known, it was uncertain whether it would be insisted upon by him, in his defence, it was not pleaded, but given in evidence on the trial, as in this action it legally might be, under the general issue.

If this note had been joint, instead of joint and several, it is not easy to discover any method of enforcing the payment of it against Thompson and wife, without making Nelson a party 10 the suit. Suppose, in that case, the plaintiffs should bring a suit against the former only, it appears imp.ossible to maintain the action in any other way, than by their showing the* infancy of the latter. If this be so, it may be asked, whether it would not be unprecedented, to allow the plaintiffs to take advantage of the infancy of one of the parties to the contract, for the express purpose of enforcing it against the others ; and whether such a procedure would not be a direct violation of the principle before alluded to, that infancy is the personal privilege of the infant, and of which he only can avail himself?

The general principle, that the plaintiff must prove a joint contract when he brings a joint suit, is not intended to be shaken by the rule which the court have thought proper to apply to this case. We mean to coniine its operation exclusively to the case of a defence insisted upon by one of several joint debtors, which is personal to him, and which does not go to the discharge of all.

Although the case of Tooker v. Bennett and Brower, ( 3 Caines, 4 .) is not, in all respects, like the present, it is in point so far as to obviate one ground of objection to the rule we have adopted. It may be said, that there will be an inconsistency upon the record in this case. *163 The court there say, that a joint suit was properly brought; and it will appear by the record, that although the promise was joint, yet ' judgment was recovered against one only, by reason of the discharge of the other. The same thing will appear here, by entering proper suggestions upon the record. We are of opinion, therefore, that the parties take judgment upon the verdict as it stands.

Judgment accordingly.