Wiltsie & Gallup v. Beardsley & Baird

By the Court, Beardsley, J. Here is a misjoinder of counts on two grounds. 1. The counts are incongruous as causes of action in favor of the plaintiffs. The first two counts are on legal liabilities to the plaintiffs’ testator in his life time, and which must necessarily be prosecuted in the name of his executors. Executors may also sue in the same character upon promises made to themselves in their representative capacity, touching the assets of the deceased in their hands, as where they sell goods or lend money which they held as executors. Counts, of both descriptions may be joined in the same declaration, for the recovery will be assets in the hands of the executors. (1 Ch. PI. 8th ed., 20; 2 Yol., 103; Cowell v. Watts, 6 East, 405; Fry v. Evans, 8 Wend., 530.) But the third count is on a cause of action existing in favor of the plaintiffs individually and not otherwise. It is true there is an averment that the note was assigned and ■delivered to the plaintiffs as executors, but it is not alleged that this was upon any cause or consideration having respect to their rights or duty as executors. Upon the face of this [389] count the plaintiffs can bring suit as individuals, but it discloses no right of action in their favor as executors. (Christopher v. Stockholm, 15 Wend., 36; Palmer v. Palmer, ib., 91.) 2. The defendants are sued on causes of action incongruous as to them. On the first two counts they are liable, if at all, as executors, and the judgment would be de bonis testatoris. But the note, in the third count was given by the defendants after the decease of their testator, and is their own personal contract. It is not alleged to have been made for any debt due from the defendants’ testator in his life time, or upon any cause or consideration having reference to their representative character. It was their personal obligation, and judgment upon it would be de bonis propriis. (Reynolds v. Reynolds, 3 Wend., 245; Demott v. Field, 8 Cow., 58; Gillet v. Hutchinson, 24 Wend., 184.) The defendants are entitled to judgment with costs against the plaintiffs. They are undoubtedly liable to costs, as they did not necessarily sue on the no'te to Becker as executors. (2 R. S., 615, §§ 17,18; Vanorden v. Reynolds, 18 Wend., 635.) Nor indeed, could they sue at all, on the note in that character. But the plaintiffs may amend on the usual terms. Ordered accordingly.