Morse v. Aldrich , 42 Mass. 544 ( 1840 )

Putnam, J.

The defendants are jointly chargeable in this action. They are also rightly charged as assigns of the covenantor, and this form of declaration would have been right, even if they had acquired their whole title to the mill-pond and dam by descent. Derisley v. Custance, 4 T. R. 75. Was the request, which was proved at the trial, so made as to authorize a suit for the neglect of the defendants to comply with it, according to the covenant declared on ?

In Griswold v. Plumb, 13 Mass. 298, it was held that where there was a joint undertaking of defendants to take the custody of, and deliver to the sheriff, goods that were attached, a demand upon one was sufficient to charge both. So in Com. Dig. Condition, L. 11, it is said, that where a condition is to deliver possession to the lessor or his assigns, and the lessor assigns to two, a request to deliver, made by one, is sufficient. In that case, the duty was to be performed by one person to two who were jointly interested, and the request by one of the joint assignees was held to be valid. S. C. 1 Rol. Ab. 428, Linghen v. Payn.

In the case at bar, the covenant was to be performed, by two persons jointly, to one, and the demand was on one of them ; and in the case of Breerton & wife, Noy, 135, it was ruled that if three persons assume to pay, or give, &c. upon request, if the request be made to one of them, it is good. 6 Dane Ab. 28. So in Doe v. Crick, 5 Esp. R. 196, the duty was to be performed by two tenants in common, viz. to quit the premises on request; and notice to quit, given to one, was held by Lord Ellenborough to be sufficient against both.

In Terry & Lowe v. Reding, Mo. 555, where two were bound to make, upon request, such assurance to a conuzee, as he or his counsel should devise, and the assurance was devised, and notice and request were made on one only to execute the assurance, who refused to do so, that notice was held good as to both. Chief Baron Comyns thus abridges that case : “If several are bound by obligation, covenant, &c. to do an act upon notice to them, notice to one is sufficient.” Com. Dig. Condition, L. 9.

In Putnam v. Longley, 11 Pick. 487, it was indeed held that notice, to one of several joint plaintiffs, of the intention of a debtor in execution to take the poor debtors’ oath, was not sufficient ; but the decision was expressly founded on the words of St. 1787, c. 29, and was treated as an exception to the general rule.

The manner of the notice, in the case at bar, viz. by leaving It at the dwellinghouse of the party, was proper : Personal notice was not necessary, as would be necessary in cases of personal process. Jones v. Marsh, 4 T, R. 464.

Wherefore, on the authorities before cited, we think that the ruling of the chief justice was correct. Let the judgment be rendered for the plaintiff, according to the verdict.