Smith v. Tallcott

By the Court, Nelson, Ch. J. There can be no doubt but that Smith- is properly made a co-plaintiff, and, according to the first case of Petrie v. Bury, 3 Barn. &. Cres. 353, the omission of his name would have been fatal. The intimation in Vernon v. Jefferys, 2 Strange, 1146, that the omission to seal might be cured by averment, seems to have been disregarded in the above'case; but it is conceded in [205] Strange, that a party named in the covenant might join in the action, though he did not seal. 1 Saund. PI. & Ev. 390. 1 Selw. 351. 6 Wendell, 629. The two instruments, I think, must be regarded as one in legal effect: standing upon the same footing as if the one signed by Smith had been incorporated in the body of the principal agreement. It is but a qualification of his liability as therein set forth, and intended as such. Had it been embraced in the body of the instrument, there could have been no doubt in the case ; for though his liability is distinct and separate from that of Cochran and wife, still there would be but one instrument, and that executed by all the parties. There can be no doubt the wife is properly joined; the covenant is made to her with others, and it is apparent she has a distinct interest. 1 Chitty’s PL 20. 10 Johns. R. 49. From the above view of this case, it follows that both counts are good. Judgment'for plaintiffs, with leave to defendant to amend on usual terms.