#### Executors of Davis v. Wilkinson et al.

Bv the act of 1739, Rev. c. 314, s. 4, the surviving obligor and execu • tors of the deceased may be sued jointly.

This suit was brought against the executors of a deceased joint undertaker to pay, and the survivor. There we,‘e several other suits on the docket of this court tlius circumstanced, being suspended by motions in arrest of judgment, and special cases, until a decision could be had upon some one of them. The doubt arose upon the con-situation of the act of 1789, c. 57, s. 5. “ And whereas if is a rule of common law, that in case of the death, of a joint, obligor, the debt can never survive against his heirs, executors or administrators ; which rule frequently is injurious and oppressive to the surviving obligor or obligors : to remedy which be it enacted, that from and after tiie passing of this act, in case of the death of one or more joint obligor or obligors, the joint debt or con-traes shall and may survive .'.gainst the heirs, executors or administrators of the deceased obligor or obligors,'-¡as well as against the survivor or survivors ; and when all the obligors shall die, the debt or contract shall survive against the heirs, executors and administrators of ail the said joint obligors.

Jones for the Defendants

This act was made for the benefit of the obligee or creditor, as well as for that of the debtor. P was for the benefit of the obligee, that, he should not be. confined to the survivor, as he perhaps might be insolvent or not to be come at. but that he might resort also if he chose to the executors of the deceased, who perhaps were solvent and within the reach of process.— The old rule was frequently injurious to the surviving *384obligor where he was only a surely — the creditor was obliged in the first instance to take his remedy again him. The act meant to remedy these mischiefs, by enabling the creditor to sue either the one or the other at his election : with this view it. says, the debt shall survive as well against the executor as Use survivor — not that it shall survive against both jointly, but it is to he a debt chargeable upon one as well as, that is to say, in like manner, as against the «liter or survivor. Mow did it survive, against the survivor, at the time of passing this act? Why, against him severally and jointly, with the other — as fo .him, there, is no alteration by this act — he stands as he did before. The. act professes to be made for his benefit, but if he is still jointly to be sued with the executor, lie is no more exempted from suit than before. Whether only a surety or a principal, the. injury complained of in the preamble, as to him, remains nearly the same ; and as to the executors, if they be the executors of a surety, they are in a worse situation than before, ,if they are now necessarily to be sued under tins act. As to the creditor, be too, in many instances, is placed in a worse situation, if he must now sue the executors together with the survivor, when they are not perhaps amenable to process, which must be continued to the pluvias before he can proceed against, the survivor who is on the spot. The creditor will be delayed longer than if this act had not been made — how is it beneficial to the creditor to say, yon shall sue both, when by so doing, he will be greatly delayed, and when, but for the act he might proceed to judgimnt immediately against the survivor? But if the act gives election to due either the one or the other, as I contend it does, then tiie creditor receives a benefit from it which he had not before : he may sue the real debtor only leaving out the innocent surety, and he may proceed without the delay incident to suing them both — -the other construction subjects to all the inconveniences just now pointed out. Some argument may be drawn from the words of the sentence next following — “And in all cases of joint obligations or assumptions of copartner:! and others, entered into after the passing of this act, suits may be brought and prosecuted on the same, in the same manner as if such obligations or assumptions were joint and several.” The Legislature provides for cases before the ad, and for cases after it: with respect to the latter *385jj,e remedy shall be joint and several — is there any rea* s*m, way they should wish it to he joint only in file former eases, and to alts r it from several, as to the «itrvi-vors. to joint against 'hem and the executors ? The Legislature evidently considered that to moke the remedy several, was essential to the purposes of justice, or why did they say in this sentence that a joint assumption shM be several also ? And if they did consider it essential to justice that it should he several as weli .is joint, why in the preceding sentence have they intended to alter tin several remedy, into a joint one ? Not to say any thing of the uncommon judgment that such a suit as the present, must necessarily require, the smallest consideration up* on that point only will serve to show the confusion that a different construction of the, act, would produce*

E contra

Ij; was urged that the point now m controversy had Ir-e.n settled at Salisbury, upon argument in the case of Brown, Messrs. Campbell & Co. v, Daniel Cleary & James Craig, administrators of David Craig, September term, 1794.

Curia advisari — After a few days taken to consider, they gave judgment.

Per curiam

We have looked into the case cited at the bar the other day, derided at Salisbury — if was a case' decided upon argument by Judge Ashe and Judge Wit-j.T-Vms — we are satisfied with the reasons of that decision as given by Judge Williams. Wherefore lot judgment be mitered for f he Plaintiff, and it was entered accordingly. Then the Plaintiffs in all the other suits depending upon the decision of this point, entered up their judgment also.

Note. — Vide Brown, Campbell & Co. v. Clary & Craig, Adm’rs. and the note thereto, ante 107.