Holmes v. Sinclair

Catón, C. J. This declaration contains two counts. The first is upon a joint and several promissory note, averred to have been executed by the defendant below and Jos. Sinclair & Co., and the second is upon a several promissory note executed by the defendant alone. Upon the trial, the plaintiff below offered in evidence a note purporting to have been executed by Jos. Sinclair & Co. and Joseph B. Holmes, jointly, to which the defendant objected, which objection was overruled by the court, and the note allowed to go in evidence to the court sitting in place of a jury, to which an exception was taken. What other evidence was adduced we do not know, as the bill of exceptions does not purport to give all the evidence. If other evidence might have been given which would have' shown that this was the several note of Holmes, so as to support the declaration, we aré bound to presume that such evidence was given, the presumption being that the court decided properly in considering the note in evidence to support the action. That facts might have existed which rendered the note the sole and individual undertaking of Holmes, there can be no doubt. Suppose it to have been proved that the name of the apparent joint maker of the note with Holmes had been signed to it without authority, so that he was not bound by it, no action could have been maintained against him upon it. To put a strong case, suppose Holmes himself had forged the name of the other apparent joint maker of the note, he alone would have been bound by it. It would have been his individual and separate note, and' only as such could have been. recovered upon. Had both been sued jointly, the action could not have been maintained in such a case even against Holmes, for a joint action must be maintained against the joint defendants, or none. Except a personal defense be made as to a part of the defendants, as infancy, bankruptcy, and the like. In the case supposed, the only mode in which Holmes could be made responsible, according to the true nature of his liability, would be in a separate action against him as upon his separate note, for it would be his separate and individual note, and nothing else. Its legal effect would be precisely the same as if his own name alone appeared to the note. Where the plural pronoun is used in the body of the note for a sole maker, it is but his separate note. We cannot say, from this record, that the court erred. The judgment must be affirmed. Judgment affirmed.