Osgood v. Spencer's Ex'r. , 2 H. & G. 133 ( 1828 )

Archer, J.

delivered the opinion of the Court. The question presented by the bill of exceptions is, whether the defendant was bound to plead in abatement, that his testator was a co-drawer of the promissory note declared .on, with others who are living, and that the right of action had survived against the survivors, and was extinguished as to him; or whether it might he given in evidence under the general issue?

No case has been cited which is in terms decisive of the present question. But an examination of some admitted principles of law cannot fail to lead to a correct conclusion.

It is undeniable, and has been conceded in argument, that on joint contract, such as this, the remedy at law exists alone against the surviving drawers, and that it is extinguished against the representatives of the deceased drawer, and that the only remedy which the payee or endorsee has against such representative is in equity.

The death of the defendant’s testator, and the survivorship of his eo-drawers, was then a complete and full answer to any action in a court of law against him, and would forever operate in such tribunal as a bar. If put upon the record as a plea, it Is not to be considered, as are pleas in abatement, merely dilatory, but as one reaching the merits of the plaintiff’s claim against the defendant, and as finally conclusive of it.

This being the character of the defence, it is properly matter in bar, and not in abatement; which latter in general presupposes a right to proceed against the defendant in some other form, as in conjunction with others not sued, or at some other time, as in the case of an alien enemy; but this defence denies the defendant’s liability altogether, at any time, or in any shape, in a court of law. It being matter in bar which shows the irresponsibility of the defendant at the commencement of the suity it may be given in evidence under the general issue, without being reduced to the form of a special plea.

Most defences may be given in evidence under the general issue in assumpsit, except limitations, insolvency, set-off and: tender, or alien enemy where the disability of the plaintiff accrued by war after the contract was made. We are inclined to think there will be found few other exceptions. If a general release, before suit brought, need not be pleaded, it would be difficult to assign a sensible reason why this defence, which is as operative and conclusive at law as would be a release, should be plead? The effect in discharging the defendant is in each case precisely the same. In the one the release is the act of the party, in the other the act of the law.

JUDGMENT AFFIRMED.