Henderson v. Talbert

Mr. Justice Thacher delivered the opinion of the court. Writ of error to Marshall county circuit court. This action was instituted against three obligors in a writing obligatory. After suit was instituted and before judgment, one of the obligors died, and thereupon a scire facias issued directed against the administratrix of the deceased obligor, which having been duly served, a judgment was jointly rendered against the survivors and the administratrix of the deceased obligor. This is claimed to be error. The statute H. & H. 578, s. 8, declares that upon the death of one or more joint obligors, the joint debt or contract shall and may survive against the heirs, executors and administrators of the deceased obligors, as well as against the survivor or survivors. A statute, similar in all respects, exists in North Carolina, and in Smith v. Fagan et al. 2 Dev. 362, the court says, [111] that the question had several times been debated, whether in the case of obligations, a joint suit could be maintained against the surviving obligor, and the executor of a dead one, it being contended that a several action survived against each ; but the courts considering it a remedial law, and putting a fair construction upon it, held affirmatively. Brown v. Clary, 1 Hay. 107; Davis v. Wilkinson, Ib. 334. For similar reasons, and because it seems to be the policy of our legislation, manifested by various statutes, to diminish the number of suits in the course of litigation, we are inclined to give a similar construction to our own statute. Judgment affirmed.