Moore v. Hepburn

Bell, J. The act of 6th April, 1830, by virtue of which the plaintiff claims to sustain the present action, though by its terms apparently confined to actions brought against joint and several obligors, has been held for a very sufficient reason to extend to and embrace the case of a joint obligation like the present; Lewis v. Williams, 6 Whart. 264. The only question, therefore, presented by the case stated, is, whether, in other respects, the present action is within the purview of the law. It is undoubtedly a remedial statute, and to be liberally construed in avoidance of the mischief it was intended to cure. This was, that at common law the obligee or promisee was compellable to bring suit against all the joint contracting parties, and yet if from any cause the process failed, of service, upon one or more of the defendants, and the plaintiffs proceeded to judgment against the others, he was barred of future action against those not served. It thus often happened, that by the operation of a merely technical rule, a just claim was defeated from the insolvency of the parties appearing to the action, while those not reached by the process were abundantly able to pay, and this without any default in the plaintiff. The object of the act of Assembly was to remedy this inconvenience by giving to the injured party a distinct action against those not brought in by the first writ, notwithstanding the precedent judgment, and this, as it seems to us, without regard to the reasons that prevented service of the process, unless, indeed, it was chargeable to the improper interference of the plaintiff himself. The court below concede the remedial character of the statute, and the propriety of a liberal construction; yet, founding itself on an expression of the Chief Justice made in Lewis v. Williams, (supra,) seems to think it necessary that, in order to entitle himself to the benefit of the provisions of the act, it is incumbent on a plaintiff to show [402] he did all he could to bring in all the defendants to the original action — that some active step on his part is necessary, in addition to causing the writ to be issued. But surely the language of the statute is broad enough to cover every failure of service of process, whether proceeding from impossibility, accident, negligence of the officer, or design of the defendants, or any of them. The provision is, “ In all cases now pending, or hereafter brought against joint and several obligors, co-partners, promissors or endorsers of promissory notes, in which the writ or process has not been or may not le served on all the defendants, and judgment may be obtained against those served with process, such writ, process, or judgment shall not be a bar to a recovery in another suit against the defendant or defendants not served with process.” Nothing of larger import than are the terms here employed, could well have been penned. They very clearly show the intention of the law-makers to give the new remedy a very extended operation, and I see nothing in the spirit of the act itself, or the policy which dictated it, to lead to such a construction as might defeat this intent. I must not be understood as asserting that the object was to obliterate wholly the distinction between joint and joint and several contracts, by permitting a party of his own management to instituto a several action against each of the joint contractors, and thus have distinct judgments. Had it been shown, in the instance now before us, that the plaintiff prevented service of the process on Samuel Hepburn, with the view of making him a party to a new and distinct action, or that he had even interfered with the action of the sheriff, we might have been able to concur in the conclusion of the Court of Common Pleas, that there could be no recovery in this suit. But there is nothing in this record to prove such Avas the fact. For aught that appears, Moore did all incumbent on him to do, by causing a Avrit to be issued against all of the co-obligors, which, it is to be presumed, was placed in the hands of the proper officer to be executed. Many circumstances may have intervened to hinder service on the present defendant, apart from any undue interference by the plaintiff, and Avithout more it ayíII not do to say that merely accepting the appearance of two of the obligors, and proceeding against them to judgment, shall place the third beyond the operation of the statute. Had the sheriff returned a service on the tAVO who appeared gratuitously, Avithout more, the legality of the present proceeding could scarcely be called into question. What difference can it make that these agreed to appear to the AA'rit, dis [403] ■pensing with a formal service by the officer ? Why the present defendant did not also appear, or was not served with the writ, is not shown. The learned judge who ruled the cause below, seems to have adopted the idea that it was incumbent on the plaintiff to make this apparent, and not having done so, it is to be assumed he did not do all he was bound to do. In this we think he fell into error. It is for those who would deprive the plaintiff of the benefit of the statutory provision to show a reason in his misconduct, either from the record or aliunde. Nothing of th^ kind is shown or asserted here, and there is, therefore, no hindrance to the working of the statute in support of his right of ■ action against the defendant. No other reason being suggested why the plaintiff is not entitled to recover, it follows that the judgment rendered by the Court of' Common Pleas must be reversed. Judgment reversed, and judgment to be entered in favour of the plaintiff, according to the case stated.