Blizzard v. Jacobs , 3 G. & J. 66 ( 1830 )

Buchanan, C. J.,

delivered the opinion of the court.

This case depends upon the construction of the act of 1825, ch. 167.

The suit was brought on a joint and several single bill against the administrators of one of the obligors, the other obligor being alive at the time; and on motion, a judgment of non-pros was rendered, an affidavit being filed in court of the fact, that the other obligor was living, and that no process had been sued out or served upon him.

The title of the act of 1825, ch. 167, is “an act to prevent the unnecessary accumulation of costs in civil suitsand that is the object of the act throughout. The first section provides, that it shall not be lawful to institute more than one suit on a joint and several bond, penal or single bill, when the persons executing the same are alive, and reside in the same county, and that if more than one suit be instituted on any such bond, penal or single bill, judgment of non-pros shall be entered against the plaintiff or plaintiffs, in such suits.

In this case, both of the persons, executing the single bill on which the action was brought, were not alive at the time of instituting the suit, and if there had been at the same time, another action against the surviving obligor, it would not have been within the prohibition to institute more than one suit on a joint and several bond, penal or single bill, when the persons executing the same are alive. That prohibition being confined to the case of all the obligors being alive, without providing for the ease of one or more being dead, and leaving to the obligor, besides his suit against the survivor or survivors, the liberty to sue also the representatives of the deceased obligor or obligors; nor is it within the provision, that if more than one suit be brought on any such bond, &c. judgment of non-pros shall be entered, there being but one suit. It is clearly then wholly unaffected by the first section; the words such bond, &c. in the first section, have reference to the case before mentioned, of all the obligors being alive. And though in such cases, not more than one suit is permitted to be brought, yet no obligation is imposed upon the obligee to sue all the obligors, (which by such a multiplication of parties, might produce an unnecessary accumulation of costs, contrary to the intention of the legislature,) but he may sue one only, if he pleases. If, however, he does so, it is at his own risk, and having made his election, he cannot afterwards bring another suit without being subject to be non-suited. .Provision being thus made by the 1st sec. for preventing an unnecessary accumulation of costs, where all the obligors are alive; the office of the 2d sec. is to provide for the case of the death of one or more joint and several obligors, where the judgments being different, the surviving obligor or obligors cannot be united in the same suit, ivith the representatives of the deceased obligor or obligors. The language used is, “ that if either of the said obligors shall be dead, then and in that case, it shall be the duty of such clerk to docket one action against the surviving obligor or obligors, and if requested so to do by the plaintiff or plaintiffs, or by his, her, or their attorney, it shall be the duty of such clerk to docket also an action against the executors or administrators of such deceased obligor, and to issue a summons, &c. and the same proceedings shall be had, and the same judgment entered thereon, as if separate actions had been brought against each and every obligor, in such joint and several bond, &c.” The expressions used, are not very technical, and are somewhat obscure. But looking to the general object of the law, the saving of costs to the parties, it could not have been the intention of the legislature, to take from a creditor his right of election, which might be exercised with a saving of costs, by bringing only one suit either against the surviving obligor or the representatives of the deceased obligor, as might be deemed most expedient; and to compel him to bring suit, whether he would or not, against a surviving obligor, (as contended for by the counsel for the defendant,) who might be insolvent; with the privilege of suing also at his election, the representatives of the deceased, which might produce a very unnecessary accumulation of costs, contrary to the intention of the legislature, and operate injuriously to the creditor where the surviving obligor is insolvent, and sometimes vexatiously to the surviving obligor, as where he is only a security. We must search then for the intention of the legislature, which however obscurely expressed, or untechnical the language used, where it can be discovered, ought to be regarded. And keeping that rule in view in the construction of this act, we think the meaning of it is, not that the clerk must at all events, if one of the obligors ho dead, docket a suit against a surviving obligor without directions, and whether the obligee or his counsel wish or not; but that as the surviving obligor and the representatives of the deceased obligor cannot be united in the same suit, and the obligee is entitled to his remedy against both, if he chooses to pursue it, two suits may be brought, one against the representatives of the deceased obligor, and the other against the survivor. And where it is said that it shall be the duty of the clerk to docket one action against the surviving obligor or obligors, the meaning is, that whether there be one or more obligors surviving, there shall be but one action against them, and that the creditor shall not be permitted to bring separate actions against the several surviving obligors, which is not provided against by the first section, where separate suits are only prohibited in the case of all the obligors being alive and living in the same county. And this view is strengthened by the circumstance, that in the 7th section, making provision for the case of obligors residing in different counties, which is not provided for in the 1st section. Similar expressions are used as to clerks docketting actions. The language of that section is, “that in case the obligors, &c. shall reside in different counties, then and in that ease, it may be lawful for the clerk of the County Court to docket one action, &c. against the obligor or obligors in such bond, &e. who reside in the same county, and for the clerk of another County Court, to docket another action, &e. against the obligor or obligors who may reside in that county, &c.” The case of obligors residing in different counties, or of some being dead, not being provided for by the first section, and the bringing of more than one suit in such a case not being prohibited, the creditor could as before the passing of the act, have brought suits in different counties, or where some were dead, against the survivors, and also against the representatives of the deceased obligors, without the aid of the 2d section; and as it could not have been the ' intention of the legislature to drive an obligee to an unnecessary accumulation of costs, by compelling him to bring a useless suit against an insolvent obligor, and thus obliging him to sue also the representatives of the deceased obligor, or by compelling him to sue a surviving obligor who was only a security in the bond, &c. whether he wishes to do so or not; but rather to prevent a useless accumulation of costs, by restraining him from bringing more suits than the nature of the case may absolutely require. The 2d section must be understood as providing only against more suits than one, being brought against the surviving obligors, where there may be more than one; and the 7th section as providing against more suits than one, being brought in any county in which the obligors may reside. When they reside in different counties, no matter how ‘many may reside in either county, the obligee is not required to bring suit in every county in which the obligors may reside, but may, if he chooses, bring one suit only, against such of the obligors as may reside in the same county, although there should be others residing in a different county. The provisions of the 7th section cannot be misunderstood, and the object of both is an unnecessary multiplication of suits, and the consequent accumulation of costs in the two cases not provided for by the 1st section. The one where some of the obligors are dead, and the other where they reside in different counties. We therefore think that the judgment of non-suit ought not to have been rendered.

JUDGMENT REVERSED AND RROCEDENDO AWARDED.