Lynch v. Commissioners of the Sinking Fund ( 1840 )

Mr. Justice Turner

stated the case and delivered the opinion of the court.

It does not clearly appear that the original process was served on Plummer; and something is said in the record about leave being given to the sheriff to amend his return as to him. But there is nothing definite in relation to this amendment. The plaintiffs below distinctly dismissed their action as to Plummer.

This case raises the question again, whether on a joint bond or note, the plaintiff must proceed jointly against the makers. The act of 10th February, 1807, found in Toulmin’s Digest, p. 104, copied in Turner’s Digest, page 134 — 143, contains this section, being section xv. (Dig. p. 137.) & Every joint bond, covenant, bill or promissory note, shall be deemed and construed to have the same effect in law, as a joint and several bond^i covenant, bill or promissory note; and it shall be lawful to sue out process, and proceed to judgment against any one of the obligors, covenantors, or drawers of such bond, covenant, bill or promissory note, in the same manner as if the same were joint and several, any law or usage to the contrary notwithstanding.” The same act has been re-enacted in Poindexter’s Code, and is found in page 578, of Howard & Hutchinson’s Code, and has never been repealed.

This case is embraced by the act of 1837, requiring all parties to bills of exchange and promissory notes, to be sued, in a joint action.

It will be perceived that this case is not of the character of that which was decided by this court, 1 Howard,129, Jones et al. v. McGahey. That was an action of assumpsit upon an open account. It was not brought on a “bond, covenant, bill or promissory note,” and was decided according to the principles of the common law.

The case reported in 2 Howard, 870, settles principles applicable to, and strictly in point in the present case. In that case, the suit was commenced in 1836, on a joint and several note against four defendants, two of whom pleaded non assumpsit, one suffered judgment to pass by default, and as to the other, a nolle prosequi was entered. The .Chief Justice, in delivering the opinion of this court, remarks, that there can be no reason why the plaintiff may not discontinue as to part of the defendants, after suit brought. This having been the constant practice in this state, and being one of convenience and utility in promoting the ends of justice, should not be interrupted, unless repugnant to some known principle of law. He further remarks, that, in this state, every joint bond, bill, covenant and promissory note, is made joint and several, and of course the rule must apply, whether the note was made joint or several on its face or not. The Chief Justice further says, that “ another ground taken for reversing the judgment is, that the court improperly rendered two judgments, one v. Harris on his default, and the other v. Peyton and Halliday on verdict, (precisely the case here.) That the state of the pleadings justified separate judgments. The plaintiff has sustained his action against all the parties, and one of the judgments is on verdict, and the other on default, and is not error.”

We consider the practice well settled on this branch of the subject, and see no reason for changing it.

The second error assigned is answered above. It is true this is an action of assumpsit, but it is assumpsit on a joint note, made joint and several by the statute law of the state, ever since the year 1807.

The fourth error assigned, is also answered above, and by the case in 2 Howard’s Rep. 870.

The third error is that the sum claimed by the endorsement on the writ is 05000, and because the judgment exceeds that sum, it is error. The counsel for the plaintiffs in error say that a party can never recover more than he demands. It is a sufficient answer to this, to state that the damages laid in the plaintiffs’ declaration, are ten thousand dollars. The endorsement on the writ, shows the cause of action; and the law does not require any notice to be taken in that part of the record, of the interest or damages, which may be recovered. Interest is but an incident, and makes no part of the principal until reduced to a judgment. It then becomes principal, and will bear interest. But the endorsement on the writ, expressly states, that the note sued on calls for 10 per cent, interest.

The question of usury was not raised on the trial in the court below. There is nothing appearing to the court to show that the contract sued on is usurious. The plaintiffs at law held the defendants’ note, given for part of the sinking fund of the state. The laws of the state allowed the loan of that fund, and prescribed the interest. And it is not unusual, when a person offers a note for discount, to receive only part of the sum proposed to be borrowed. The true amount discounted is noted, and the note retained, without putting parties to the trouble of making a new note. This matter seems not to have been questioned in the court below.

The fifth assignment of error, is covered by what has been al ready said.

Let the judgment of the court below be affirmed.