Maxey v. Averill's Executors , 2 B. Mon. 107 ( 1841 )

Judoe Makshall

delivered the Opinion of the Court.

This action was brought against the executors of Averill upon a note signed "Averill & Browning,” and the defendants having pleaded, that Averill & Browning were partners under that name, and that Averill died in the life of Browning, who still survives; the only question presented by the record is, whether, under such circumstances, the action can be maintained against the executors of the deceased partner. This question is, as we think, answered in the affirmative by the provision of the third section of the act of 1797, concerning partitions, joint rights and obligations, (Stat. Laxo, 318,) which enacts that "the representatives of one, jointly bound with another for the payment, &c. and dying in the lifetime of the latter, may be charged by virtue of such obligation in the same manner as they might have been charged, if the obligors had been bound jointly and severally.”

That the representatives of a deceased obligor, who was bound jointly and severally with another, might, at common law, be sued in the lifetime of the co-obligor, is well established by numerous authorities, and the effect of this statute is to place the liability of the representa.tives of a joint obligor, dying in the lifetime of his co-obligor, on precisely the same footing. By. the common law, if one of two or more joint obligors died, the entire legal obligation devolved exclusively upon the survivors, and the representatives of the deceased obligor could only be made liable in equity. The effect of the statute in such a case, is that, so far as the remedy is concerned, the legal obligation of the deceased does not, as at common law, merge in that of the survivors, but devolves upon his representatives as if he had been severally and solely bound, while the survivors' remain also bound as ff there had been no other obligor; and the obligee has a separate remedy upon each of these liabilities.

The representatives of one partoershi^ is bond3 Executed by the partners, ship name,

It is said, however, that the statute does not apply to „ . . „ , , , . . .. this case, because this is a case ot partners bound jointly by the note of the firm, executed in the name of the partticrship, and that by the well settled law of partnership, the legal duty as well as the legal right growing out of a partnership contract, devolves upon the survivor. Lut this doctrine is no better settled at the common law, with regard to the contracts of partners, than it is with regard to the joint obligations of other parties; and as the case of one partner who, being jointly bound with his partner, dies in the lifetime of the latter, comes expressly and precisely within the words of the statute, we do not feel authorized to say that it is excluded from the remedial provisions of the statute, and especially as we perceive no ground for distinguishing, in this respect, between the case of partners and other obligors, sufficient to authorize the conclusion that the Legislature intended to discriminate between them, or that it would have done so if the application of the statute to the case of partners had been particularly thought of. It follows that, in our opinion, the plea was insufficient to defeat the action.

The Court, therefore, erred in overruling the demurrer to the plea above mentioned, and for that enor the judgment is reversed and the cause remanded with instructions to sustain the demurrer and for further proceedings.