its language is to be distributed and applied to each according to their respective characters. Roler & Crawford by their joint promissory note promise to pay the debt; and Weller and John W. Roler, by their joint bond, at the same time promise and bind themselves and their heirs to do the same thing. The undertakings of the two sets of contractors are as distinct as if they had been evidenced by different papers. Though the defendants in error have all agreed, at the same time, to pay the money, yet they have thought proper to sever in the use of the instruments selected to evidence that agreement. Two have expressly reserved to themselves the right to enquire into the consideration of the agreement; whilst the other two have estopped themselves from so doing. Roler & Crawford, upon the plea of "nil debet," might have shewn that the paper was without consideration; and, if so, they would have been discharged. Now, one of the most familiar rules governing joint actions is, that the discharge of one of the defendants, upon a plea going to the original merits of the cause of action, operates a discharge of all; and yet Weller and John W. Roler have by their contract estopped themselves from denying that there was a consideration, and have in effect stipulated that, though want of consideration should in any way appear, they would still stand bound. To render judgment in such a supposed state of pleading, in favour of Roler & Crawford and against Weller and John W. Roler, would be to violate the rule, in respect to joint actions, just above mentioned; whilst, on the other hand, to discharge the two latter would be to give them the benefit of a defence which, by giving a bond, they have voluntarily precluded themselves from making. I cannot think that such a conflict between a well settled rule of pleading and an equally well established law of contract could arise in an action properly brought. VOL. VIII.-5 1851. July Term. Rankin Roler & als. 1851. July Term. Rankin V Roler &als. Again, Weller and John W. Roler have expressly covenanted to pay the debt; whilst Roler & Crawford have at the same time assumed to do so. What is there in the nature of the transaction to debar the plaintiff of a right to sue the two former in covenant or the two latter in assumpsit? Such a right seems to me to be necessarily attached to the undertaking, and its establishment is wholly inconsistent with the idea of there being but one joint contract, upon which there must be a joint action against all the parties, if against any. The question here is not one in respect to the joinder of actions, but of parties; not whether an action of debt on a bond and an action of debt on a note may not be joined, but whether two parties who have undertaken to pay a debt, by bond, may be sued as joint contractors with two others who have, at the same time, undertaken to pay the same debt by promissory note; not whether two distinct causes of action against the same parties may not be blended in one suit, but whether the two sets of parties have not united in a single cause of action. The settlement of the former question does not, therefore, tend in any degree to aid us in solving the latter. It seems to me, that whilst the defendants in error have all contracted to pay the same debt, yet that the respective rights and responsibilities of the parties,growing necessarily out of the different instruments by which they have bound themselves, are of such a character that they could not, in case of a controversy, be litigated and adjudged in one action without doing violence to well established rules of pleading; and that the demurrer to the declaration on account of the improper joinder of parties ought to have been, as it was, sustained by the court. I think, therefore, that the judgment ought to be affirmed. MONCURE, J. delivered the opinion of the court. in sustaining the demurrer to the declaration. The contract on which the suit was brought is a joint contract. The defendants contracted together, with the plaintiff, for one and the same act, to wit, the payment of the debt in the declaration mentioned; and it appears on the face of the contract that they intended to become jointly liable. The fact that there is no seal or scroll annexed to the signature of Roler & Crawford, and that there are scrolls annexed to the signatures of Benjamin Weller and John W. Roler, while it makes the instrument a promissory note as to the former, and a single bill obligatory as to the latter, does not change the joint nature of the contract. Without intending to decide in this case that several actions might not be maintained upon the instrument, regarding it in one action as the simple contract of Roler & Crawford, and in another as the specialty of Benjamin Weller and John W. Roler, the court is yet of opinion that one action of debt may be maintained upon it against all of the joint contractors; each of whom will in such an action be entitled to make any defence which he might make in a separate action. In this way the intention of the parties is effectuated, multiplicity of actions is avoided, and no injury or inconvenience is occasioned to any person. Therefore it is considered that the said judgment be reversed and annulled, and that the plaintiff recover against the defendants his costs by him expended in the prosecution of his writ aforesaid here. And this court proceeding to give such judgment as the said Circuit court ought to have given, it is further considered that the demurrer to the declaration be overruled, and that a trial be had of the issue in fact joined upon the plea of payment. And the cause is remanded to the said Circuit court for further proceedings to be had therein. 1851. July Term. Rankin V. Roler & als. 1851. July Term. Lewisburg. DUNCAN . HELMS & others. (Absent Cabell, P.) August 29th. A record to which neither the demandants or the tenant was a party is not even prima facie evidence against the tenant that the grantor in the deed to the demandant was heir at law of the grantee in the patent under which the demandant claimed title. This was a writ of right in the Circuit court of Floyd county, brought by Madison B. Helms and others, who sued for John Belden, against Squire Duncan, to recover a tract of land of eight thousand acres. The tenant appeared and filed a plea, by which he defended his right to ninety acres of the land, and pleaded non-tenure as to the remainder. And the record states that the demandants filed their replication to the plea, and so the mise was joined; but the replication does not appear to have been in writing. On the trial, the demandants claimed under a patent from the Commonwealth to Austin Nichols; and having introduced in evidence the copy of a record in a suit in equity in which John Belden was plaintiff and Daniel Nichols, alleged in that case to be the only heir at law of Austin Nichols deceased, and others, were defendants, the object of which suit was to obtain the naked legal title to a large tract of land, embracing the land in question, the equitable title having been previously conveyed, and in which there was a decree appointing a commissioner to convey the title to the plaintiff, the demandants moved the court to instruct the jury that said record was prima facie evidence that the said Daniel Nichols was the heir at law of Austin Nichols, and that the legal title was in him; which instruction the court gave; and the tenant excepted. There was a verdict and judgment for the demandants, and the tenant thereupon applied to this court for a supersedeas, which was allowed. The Attorney General and Staples, for the appellant. DANIEL, J. delivered the opinion of the court. The court is of opinion that it was not competent for the demandants on the trial to rely on the record of the suit in chancery between John Belden and Daniel Nichols and others, for the purpose of shewing that the said Daniel was the heir of Austin Nichols, and that the legal title to the land in controversy was in him; neither the demandants nor the tenant having been parties to said suit: And consequently, that the judge of the Circuit court erred in giving the instruction asked for by the demandants and excepted to by the tenant; and that for this error the judgment of the Circuit court ought to be reversed, the verdict set aside, and the cause remanded. Such being the opinion of the court, it becomes unnecessary to decide the other question presented in the petition, to wit, whether the issue on the first plea of the tenant was ever properly joined in the cause, and if not, whether the irregularity was cured by the verdict. The cause being remanded for a new trial on account of the erroneous instruction aforesaid, the judge of the Circuit court can, before such new trial is had, cause the alleged defect in the pleadings to be supplied by requiring the demandants to file the written replication required by the statute. Judgment reversed with costs; verdict set aside, and 1851. July Term. Duncan V. Helms & others. |