New Haven & Northampton Co. v. Hayden

Gray, C. J. This is a joint contract, and was so declared upon in this action. One of the defendants having died intes.tate, the question now presented is whether the action can proceed against his administrators as well as against the surviving de» fendants. [365] At common law, in case of a joint contract, if one of the joint contractors died, an action at law could not be brought or prosecuted against his executor or administrator, but against the surviving contractors only; and if the contract was several, or joint and several, the executor or administrator of one could be sued in a separate action, but not jointly with the survivors, because he was to be charged de bonis testatoris, and they de bonis propriis. Foster v. Hooper, 2 Mass. 572. 1 Dane Ab. 158. Jenkins v. De Groot, 1 Caines Cas. 122. 2 Wms. Ex’ors (5th Am. ed.) 1576, 1577. By our statutes, if one joint contractor dies, his estate may be charged as if the contract had been joint and several, that is, by action at law against his executor or administrator alone. St. 1799, c. 57. Rev. Sts. c. 66, § 27. Gen. Sts. c. 97, § 28. Curtis v. Mansfield, 11 Cush. 152. Sampson v. Shaw, 101 Mass. 145. The provision of the practice act; St. 1852, c. 312, § 3 ; Gen. Sts. c. 129, § 4; that “ persons severally liable upon contracts in writing, including all parties to bills of exchange and promissory notes, may all or any of them be joined in the same action,” is a rule of pleading, relating to parties severally liable by their own contract, and not to those whose liability, originally joint, must, by reason of subsequent events and operation of law, be enforced severally; and does not affect the survivorship of actions or the remedies against the representatives of parties deceased. This is made evident by those sections of the chapter upon that subject which declare that in case of the death, before judgment, of one of several defendants in a personal action, the cause of which survives, the action shall proceed against the survivors; and which allow such action to be prosecuted against an executor or administrator, only when the deceased is the sole defendant, or the last surviving defendant in the action. Rev. Sts. c. 93, §§ 1, 12, 13. Gen. Sts. c. 127, §§ 5, 11, 12. It follows that, by the death of the defendant Hayden, the cause of action was severed, and could be enforced against his administrators by a separate action only. The agreement signed by him in his lifetime, as to the amount for which judgment should be rendered, did not affect the form of remedy by which his estate could be charged after his death. Prior v. Hembrow, 8 M. & W. 873, 889. Exceptions overruled.