President, &c. of the Bank of Chenango v. Root

Majority

p. 126

The President, &c. of the Bank of Chenango, against Root and Keeler.

Headnote

An attorney, common pertid’toTesorv" cd with the cause R ^e give no notice

jointendorsers, not partners, must both havo rSZTS

timated strong-mus^but^he point was not finaiiy

The' defendant, Root, an attorney, being sued with another by capias, the' plaintiff had proceeded to-judgment him, as a common person, -by filing the declaration, and affixing notices, &c, in the Clerk’s office, &c. He had given no notice of appearancé totheplaintiíí'’s attorney, either in-his own name, or that of any other" attorney, nor that he should defend the cause. On thisstate offacts, the defend-ánt’had given notice of a non-énumeráted motion to- set ° aside the default for irregularity. The: "affidavits iiropposition tethemotion gave the same history,and went on to détab other particulars, viz : - that the'action was-against Root and Keeler as -endorsers ofapromissory note made payable to them jointly, and endorsed with their hands and names respectively. ;-Root had-received :a'regular notice as'éndorKéeíel' had riot y- in consequence of which a verdict had been found for him. A rule for judgment by‘default, &c. had been entered against Root.

p. 127

Talcott, (Attorney General,) moved to set aside the proccediiigs for irregularity.

The first ground he took was, that the papers should have been served on Root in the same manner as upon an attorney retained in the cause, and he cited Brown v. Childs, (17 John. Repi 1.)

J. A. Collier, contra, said the rule did not apply to an attorney sued with

others. It never prevailed. even in England, where an attorney’s privilege is much greater than here.

We have decided to the same effect, ovér and over again.]

[Woodworth, J.

Talcott. This is true as to the service of the writ: but 11 I am not aware that the rule has been extended to the service of subsequent papers. This does not depend on the common law, but on the practice of the Court.

He next took the ground that here could be no judgment for the plaintiff, upon the whole record. The contract of the defendants was joint; and a-verdict for one is - equivalent to a verdict for both. The note was payable to - them jointly, and their endorsement was, in its very nature, joint. The plaintiff must succeed against all or none, the contract being entire. (Tidd’s Pract. 803-4, and the cases there cited.)

Collier said this point could not be raised on a non-enuinerated motion. If the defendant'relies upon the proceedings at the Circuit, he should bring the matter up by a' motion in arrest, or at any rate wait till the coming-in of the postea. But,

The Court said they would hear the motion on its. merits, and consider of the preliminary point.

said it came to the simple question, whether you can maintain an action against one of two joint endorsers, if notice he not given to the other.]

Collier. Root cannot complain of a judgment against him. He received notice, and was duly charged as endorser. The condition of his endorsement was, “ give me notice.”

“ Give us notice.”]

Collier. I put the case of a second endorser. He cannot complain that no notice was given to the first.

Your case is of several endorsements. Would the property of this note have passed hy the separate endorsement of either Root or Keeler ?]

Collier. It would not.

Does not this show a joint notice necessary'?]

Collier. I think not.

Each of the defendants stands upon the joint rights of both.—]

Like joint obligors in a bond. If one be discharged, you cannot go against the other.]

If you are right, then you should have had a verdict and judgment against Keeler. The notice to Root would have been sufficient for both.]

The Attorney General, said that Carvick v. Vickery, ( 2 Doug. 653 , note,) had been overruled.

At another day,

■ The Court said they were clear that the defendant Root, having given no notice that he would appear and defend the cause, and being joined with others, might be treated as a common person. As to the other branch of the motion, they

p. 129

thought it true, as a general proposition, that a notice to one of two joint endorsers, they not being partners, would not affect the other ;^[2] but they would not now decide the point. The facts on which that objection was grounded, principally came out in the plaintiff’s affidavits, who was probably not anticipating the ground now taken; and there might be circumstances to take the casé out of the general rule. If there were any such, he should have a fair opportunity to show them. Besides, all the facts appear of record, and the defendant might, and perhaps properly should have brought up the matter by way of motion in arrest of judgment. They denied the motion, but without costs.

Motion denied

(b) (b) Vid. Chit, on Bills, Phil. ed. 1821, p. 159, 297, and the cases there cited.

Footnotes

(a) (a) Vid. Gay v. Rogers and Wait, 3 Cowen’s Rep. 368.