West v. Furbish , 1877 Me. LEXIS 1 ( 1877 )

Virgin, J.

In actions ex contractu, the common law generally requires that a recovery must be against all or none of the joint contractors. This general rule, like most others, has its exceptions; as where one of the joint promisors resides without, and has no

property within the jurisdiction, so that no service can bo made upon him, (Dennett v. Chick, 2 Maine, 191; Rand v. Nutter, 56 Maine, 339); or has deceased, (Harwood v. Roberts, 5 Maine, 441); or pleaded infancy, (Cutts v. Gordon, 13 Maine, 474); or bankruptcy, (Coburn v. Ware, 25 Maine, 330); in which cases their names may be stricken from the writ, and judgment be recovered against the other defendants.

The same rule required all the joint promisors to be made parties, although one of them had received his discharge in bankruptcy. 1 Chit. Plead. 42, 42 a. He might or might not plead his discharge. If he did and proved it, he recovered his costs. Such recovery did not prevent the plaintiff from obtaining judgment against the other defendants. The bankrupt act itself’provides (§ 5118) that “no discharge shall release, discharge or affect any person liable for the same debt, for or with the bankrupt, either as partner, joint contractor, indorser, surety-or otherwise.”

In 1868, (cc. 157 and 223,) and 1870, (c. 79,) the legislature intervened to regulate actions pending in which any defendant therein is a bankrupt. The provisions are embodied in R. S., c. 82, §§ 46 and 47. Section 47 provides in effect that when it appears that any defendant is voluntarily or involuntarily adjudged a bankrupt, “either before or after the commencement of the action,” it shall be continued until the proceedings in bankruptcy are closed on two conditions ;

1. The plaintiff need not wait for the termination of bankrupt proceedings, to the end that if the bankrupt obtain his certificate of discharge he may plead it; but upon suggestion of the commencement of such proceedings, the plaintiff may, if he will, thereupon strike such bankrupt defendant’s name from the suit “without costs,” and proceed at once against the remaining defendants; or,

2. If such bankrupt defendant fail to use due diligence in the prosecution of his bankrupt proceedings after one term’s notice in writing from the plaintiff, then, in the absence of any stay of proceedings from the bankrupt court under the provisions of U. S. Rev. Sts. § 5106, the plaintiff may by leave of court, proceed without further delay against all the defendants including the bankrupt.

The objection that this statute permits the striking out of a bankrupt defendant’s name only when he is a several promisor, is not tenable. The statute makes no distinction between joint and several promisors, but applies in terms to “any defendant.” There need be but one. Severy v. Bartlett, 57 Maine, 116. If the legislature intended it to apply to a several promisor only,' the clause relating to defendants whose bankruptcy proceedings commenced “before” as well as “after the commencement of the suit,” would be useless; for if severally bound, the bankrupt defendant who has filed his petition or has been adjudged a bankrupt before suit, need not be sued ; but in such case, the plaintiff may select any solvent promisor and sue him alone ; while if jointly bound, they must all be sued, even if one or more is in bankruptcy'.

The object of the statute would seem to be two-fold. One clause is in consonance with IT. S. Rev. Sts. § 5106, and is intended to protect the bankrupt, that the action shall, on suggestion of bankruptcy by the bankrupt, (Palmer v. Merrill, 57 Maine, 26,) be continued a reasonable time, to the end that the question of his discharge may be determined, and if obtained, that he may plead it; and the other to aid the plaintiff in obtaining a speedy judgment against his solvent debtors, when without the statute his remedy might be clogged by reason of the bankruptcy of one of them.

Appleton, C. J., Walton, Barrows, Peters and Libbey, JJ., concurred.