#### Starkey Sharpe v. William and James Jones, executors of the last will of James Jones, deceased, and against John Winborne.

From Hertford,

Debt on a note sealed by one obligor, but not sealed by the other. The Defendants plead severally. The executors of one obligor pleaded the “ general issue, and fully administered.” The other obligor pleaded the “ general issue and statute of limitations.” The Jury found the plea of “ fully administered” in favor of the executors, and upon the plea of “ the statute of limitations,” they found against the other Defendant, from which he appealed, and in the Superior Court it was moved to dismiss the appeal, because he alone had appealed, and there were other Defendants. Motion to dismiss disallowed, for,

Ey the act 1789, ch. 57, suits may be brought and prosecuted on all joint obligations and assumpsits, in the same manner as if they were joint and several.

If an assumpsit be brought against two, the Jury may find against one and in favor of the other; so that the judgment to be given against the parties in this action is not joint.

The act of 1777, ch. 2, gives the right of appeal to any person, either Plaintiff or Defendant, dissatisfied with the sentence, judgment, or decree of the County Court.

The rule in writs of error is, that all persons against whom a joint-judgment is given must join in it; or, if any of them refuse, he or they must be summoned and severed.

There is an absurdity in requiring a party to join in the prosecution of a writ of error, in whose favor the judgment below bad been rendered; -and summons and severance apply only where the judgment was given against a party who will not join. The like rule prevails with respect to appeals.

As to the plea of the statute of limitations: The note was given and became due in 1810; suit was brought in 1816. The act of 1814, ch. 17, docs not allow three years after its passage for bringing actions of debt upon simple contract, where the cause of action then existed; but limits the bringing of the action to three years “ after the cause of action accrued.” And here the • cause of action having accrued in 1810, the action was barred the moment the act was passed.

This was an action of debt brought upon the following note, to-wit:

*307ie We promise to pay Starkey Sharpe, one hundred pounds, withinter-Sc est from the first day of January last, for value received, as witness our “ hands and seals this 22d June, 1810.

“ JAMES JONES, (Seal.)

« JNO. WINBORNE, (Seal.)

w Witness,

“ Jko, Askew.”

The suit was commenced in May 1816, and the Defendants pleaded severally. The Executors pleaded “ general “ issue and fully administered.” The Defendant, Win-borne, pleaded the “ general issue and statute of limita- “ tions.” Upon the trial in the County Court, the jury found for the executors upon their plea of “ fully administered,” and against Winborne upon his plea of “ the statute of limitations.” From the judgment of the County Court, Winborne appealed, and in the Superior Court a motion was made to dismiss the appeal, upon the ground that Winborne alone had appealed. The case was sent to the Supreme Court upon the motion to dismiss the appeal, and upon the further point made in the case, whether under the act of 1814, ch. 17, the Defendant, Winborne, could avail himself of the statute of limitations in this action, the note having been executed and become payable before the passage of the act.

Upon the first point, the Court were unanimous that the appeal was rightfully granted, and the motion to dismiss should be disallowed. Upon the second point, Tatlor, Chief-Justice, and IIeiodersoN, Judge, were of opinion that the statute of limitations barred the Plaintiff's demand ; and Haii, Judge, was of a different opinion.

Taylor, Chief-Justice.

This being a joint obligation, the remedy at Common Law would have survived against Winborne; and if suit had been brought against the executors alone, they might have pleaded the survivorship in bar, or have given it in evidence under the general issue.* But the remedy is extended by act of Assembly against *308the heirs, executors, and administrators of the deceased obligor, as well as against the survivor •, and suits may be brought and prosecuted on all joint obligations and assumpsits, in the same manner as if they were joint and several.*' In this case the pleas- were several: “ the “ general issue and fully administered” were entered for the executors, and “ the general issue and statute of lim-iS itations” for 'Winbome. The finding of the Jury was several j for it docs not appear that a judgment of guando was prayed against the executors : they went without day, while a judgment must be supposed to have been rendered against 'Winborne upon the statute of limitations.

It has been decided in this Court, that under the broad expressions of the act of 1789, if an assumpsit be brought against two, the Jury may find against one and in favor of the other, thus severing by their verdict a joint contract, upon which the suit was brought. From all this it is evident, that the judgment against the parties in this action was not joint. Now the rule in writs of error is, that all persons against whom a joint judgment is given must join in it ;† or, if any of them refuse, he or they should be summoned and severed.‡ But if there be five Defendants, and three be acquitted, the writ of error must be prosecuted by the two alone.§ In some cases they must all join, where the judgments are, in their nature, several; as where an action is brought against three executors, one of whom pleaded “ plene administravit” generally, upon which the Plaintiff took judgment against him of assets quando, &c. and the other two Defendants pleaded judgments, et plene administraverunt ultra; the Plaintiff replied that the judgments were obtained by fraud; and, upon the trial, had a verdict: whereupon, those two Defendants brought a writ of error, and the Court held that all three ought to have joined.ǁ But though the judg*309ments in that case were several, yet they were rendered against all three of the Defendants ,• and I believe no case is to be found where a party who is discharged by the judgment is necessarily to be joined; and one of the cases cited shews it would be error to do so. Indeed there is an apparent absurdity in requiring a party to join in the prosecution of a writ of error, in whose favor the judgment below had been rendered; and summons and severance apply only where the judgment was given against a party who will not join.

This being the law in relation to writs of error, no reason occurs why it is not alike the rule with respect to appeals. An appeal is a proceeding by statute to remove the cause altogether, for the purpose of reconsidering both the fact and the law. A writ of error is founded on the Common Tawami operates only by reconsidering the law. Both are regulated by the act of 1777, ch. 2, and in language of nearly the same import. There is, indeed, a slight variation in the description of the parties : “ where “ any person or persons, either Plaintiff or Defendant,” are the terms used with respect to appeals j but “ whero “ any person” are applied to a writ of error, the latter seeming to contemplate only one party. If the trial below was of an issue to the country, the trial upon appeal shall be cíe novo ; by which I understand the trial of that which is appealed from, -which, in this case, is the finding of the jury against Winbornc on the statute of limitations. It is true, that the Plaintiff will be obliged in the Superior Court, to satisfy the words of the act and make it a trial de novo ; but the idea I mean to convey is, that it is only meant to be de novo as to the party against whom the judgment was given in the Court below, and who alone has appealed therefrom. Whether the analogy to writs of error would be strictly enforced, where the judgment was rendered against all the Defendants, though but one appealed, is a question of soriip nicety, which, whenever it occurs, will merit consideration. I perceive that, in one of the states, *310jn giving a construction to an act of Assembly substau-tially the same with ours, the Court considered that where one Defendant appealed, he appealed for all the others, 110516 °f whom bad entered into the recognizance which the act required.* Upon the first question, I am clearly of opinion, that the appeal was rightly constituted in the Superior Court.

Upon the other ground also, I am of opinion the Defendant is entitled to judgment. The Legislature have undertaken to prescribe the time within which actions shall be brought, which it is perfectly competent for them to do ; and this action was not brought within three yeai’s after the cause of action accmed.

Ham, Judge

In this case the Defendants have sevei’ed in their pleading, and one of the pleas pleaded by the Exccutoi’s has been found for them, namely, the plea of “ fully administered,” by which they are discharged. The Plaintiff has neither moved for a new trial, nor appealed. The plea of the statute of limitations pleaded by the Defendant Winbome, has been found against him, and he has appealed. It would seem to be a hard case upon the Executors, if they wei’e also bound to appeal on that account. It would also be a hard case upon Win-borne, if he could not appeal, because the Executors would not join him in it. They have nothing to appeal from $ he has a judgment against him, from which he ought to be at liberty to appeal. Suppose tliei’e is no appeal; the Plaintiff is bound to pay the Executoi’s their costs, and an execution would issue for that purpose. Judgment being against Winbome, execution would issue on behalf of the Plaintiff against him ; so that there would be diffei’ent or cross executions, issuing, from the same Coui’t, and I see no good reason why the same executions might not issue from different Courts ; that is, from the County Court, and the Supeiior Court, to which latter Coui’t part of the *311case is carried by appeal, In the case of Stockstill v. Shuford and others,* where the Defendants pleaded severally in trespass ; some of the Defendants were acquitted, the rest were found guilty. It was held, that those acquitted were entitled to their costs ; those found guilty were hound, of course, to pay the amount of the judgment against them and costs. I am of opinion, that the Defen-fendant, Winborne, was at liberty to appeal, without being joined by the Executors in such appeal.

As to the statute of limitations, I think, the act of 1814, ch. 17, began to operate upon the note on which this action is brought, when it became a law, and not before ; and that it began to operate upon it at that time, in the same way it would have done, provided the note had been given after the act had become a law. I am of opinion that judgment should be given for the Plaintiff.

Note. — The act of 1814, ch. 17, declares that “ all actions of debt, “ grounded upon any lending or contract without specialty, which shall sc be sued or brought, after the ratification of this act, shall be commenced “ or brought within three years next after the cause of such action or “ suit, and not afterwith a saving fox infants, femes covert, persons of unsound mind, imprisoned or beyond seas.

*

Engs v. Donnithorne, 2 Burr. 1196. Postan v. Stanevy, 5 East. 261.

*

Act of 1797, ch. 57.

†

Walter v. Stokoe, 1 Ld. Ray. 71.

‡

Carth. 8.

§

Vaughan v. Loriman and others, Cro. Jac. 138,

ǁ

1 Willson, 88.

*

2 Tyler 396 — Hurlbut v. Meachum

*

Conf. Rep. 556.