Mason & Hale v. Denison — 11 N.Y. 612

Majority

p. 612

*Mason & Hale vs. Denison.

Headnote

Under the statute against joint debtors, authorizing a plaintiff to proceed to judgment where all the defendants have not been brought in, judgment may be entered as well where the defendant not brought in is an infant, as where he is an adult; and consequently, a judgment thus entered against an infant defendant will not be revoked upon a writ of error coram nobis, although such judgment was entered without the appointment of a guardian to the infant.

Error coram, nobis. C. & L. Denison, October term, 1828, sued Mason & Hale ; Mason was returned taken upon the capias ad respondendum, and Hale not found. The plaintiffs declared against both defendants under the statute against joint debtors, in an action of assumpsit, for goods sold and delivered, on the common money counts, and on an account stated. Mason gave a cognovit $515 64, upon which a judgment was entered against both defen

p. 614

dants. In May, 1831, the defendants sued out a writ of error coram nobis, Mason appearing by attorney and Hale by guardian, and assigned for error, that at the time of the rendition of the judgment, Hale was an infant, within the age of 21 years, and that he ought to have been permitted to appear to defend the suit by guardian, wherefore they prayed the judgment might be revoked. To this assignment of error the plaintiffs below demurred, and assigned as special cause of demurrer, that it was not alleged in the assignment that Hale had appeared in any manner whatever in the suit in which the judgment sought to be revoked was rendered. To this there was a joinder.

J. A. Spencer,

in support of the demurrer. Had the defendant Hale appeared in the suit in which judgment was rendered against him, either in person or by attorney, it would have been error; but he did not do so ; he did not appear at all—and not being in court, a guardian could not have been appointed for him. The judgment was entered under the statute authorizing proceedings against joint debtors, where all are not brought into.court. 1 R. L. 521, § 13. Hale was returned *by the sheriff not found; the plaintiffs, therefore, could not compel his appearance, nor have a guardian appointed for him, nor treat him as in court for any purpose, except to enter judgment against him ; and that they were expressly authorized to do by the statute. The cause of action being joint against both defendants, the suit was necessarily brought against both. Formerly, where one of several joint contractors could not be found on the capias issued against him, the plaintiff might proceed to outlawry, and though the defendant was an infant, judgment of outlawry was rendered without appointing a guardian for him in such proceedings, for such appointment would have been a felo de se ; and if an appearance by guardian was not necessary in the case of outlawry, why should it be required in the proceeding against joint debtors, which is a substitute for the outlawry. Now, proceedings to outlaw a defendant in a civil action are abolished by statute, 2 R. S. 553, § 15, and unless the judgment sought to be reversed be sustained, plaintiffs having a joint cause of action against several defendants, one of whom is an infant who cannot be found, will be remediless.

S. Stevens, contra.

The suit in which judgment was rendered was for a cause of action for which an infant could not be rendered responsible, being for a debt contracted as a merchant, and on an account stated. By the judgment, the property in which the infant had a joint interest with his co-defendant is bound. A judgment may be entered where a defendant suffers a default or by nihil dicit, but it cannot be entered if the defendant be an infant, unless a guardian be appointed. It is no answer to say that the infant not having been brought into court, a guardian could not be appointed ; for if such be the case, it proves that the proceeding is inapplicable in the case of an infant. 7 Wendell, 489. Had the infant been brought into court, he might have defeated a recovery against him by setting up the plea of infancy, and he cannot be deprived of his defence by having a writ returned against him non est inventus. If the statute of joint debtors applies, the plaintiffs should, in the language of the act, have judgment and execution against all the defendants in the same *manner as if all had been brought into court, which would have been by having a guardian appointed for the infant. But it is insisted that the joint debtor act is inapplicable, where the defendant not brought in is an infant. The legislature did not intend by it to change the common law in respect to the privilege of infants ; such is not their declaration ; and it is said to be a well settled rule, in tenderness to infants, that the construction of all statutes is, that minors shall not be ousted of their common law privileges,

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unless the legislature have so expressly declared. Reeve’s Domestic Relations, 58.

Spencer, in reply,

denied the last proposition contended for on the other side, and insisted that the law was directly the reverse, i. e. that infants were included as well as adults in the general terms of an act of the legislature, unless an express exception was made in their favor.^[1] He also insisted that the phraseology of the act commented on by the counsel for the plaintiffs in error, requiring plaintiffs proceeding against joint debtors to have their judgments and executions in the same manner as if all the defendants had been brought in, referred to the judgments and executions only, and not to the previous proceedings.

By the Court,

By the Revised Laws, vol. 1, p. 521, § 13, it is provided that all persons jointly indebted to any other person upon any joint obligation, Sec. for which remedy might be had at law against such debtors, in case all were taken by process, See. shall be answerable to their creditors separately for such debts; that is to say, a creditor may issue process against all the debtors, and in case any be brought into court, he or they so brought in shall answer to the plaintiff; and in case judgment pass for the plaintiff, he shall have execution against the person and sole property of the one taken, and against the property of all. Under this act, it has been decided that the defendant brought into court may confess judgment, and it will be as effectual against all *the debtors- as when obtained by default or after contestation. This case, therefore, shows that the application of the statute to joint debtors, when one or more are infants, may enable creditors to obtain judgment against the latter on contracts not binding upon them.

At common law, an infant can appear and defend only by guardian, and not in person or by attorney, Co. Litt. 135, b., 2 Inst. 261, 2 Str. 784, and this even when sued jointly with an adult defendant. The revised statutes contain substantially the same provisions as the former act. The second section declares the effect of the judgment, namely, that it. shall be conclusive evidence of the liability of the party taken, or who appeared ; but against every other defendant it shall be evidence only of the extent of the plaintiff’s demand, after the liability of such defendant shall have been established by other evidence. 2 R. S. 377, § 1, 2. The statute concerning joint debtors was intended to -supersede the necessity of the plaintiff’s proceeding to outlawry against one not found, or brought into court, which was essential before judgment could pass against those taken. 1 Archb. Pr. 123. 2 id. 173, 179. An infant beyond the age of 12, the period when anciently he was capable of taking, the oath of allegiance, was liable to the proceeding of outlawry; but a party, after outlawry on mesne process, might always come in on terms and defend the original suit. 1 Tidd, 126. 2 Archb. 173, 180. The words of the statute are broad and unqualified, and we do not see how we can say that the legislature did not intend to include infant joint debtors. They could not have been ignorant of the privilege of infants, nor of the consequences of this provision in respect to them. The debt being joint, and the judgment only against the joint property of the one not taken, they must have supposed that this particular interest woxxld be sufficiently protected by being represented by one or more in defending the suit, and thus the infant would always be secured the benefit of the defence of an interested co-defendant. It is just that the joint property should be subjected to the payment of the debt, both as to the cre

p. 617

ditor and co-debtor, and we see no particular evil from the statute, as thus construed, in regard to the infant; and if there is any evil, it *must be left to the legislature to correct it. There is no violation of the common law rule that an infant can only appear by guardian, because the act is framed upon the idea of the non-appearance of the debtor. The debtor brought into court appears for all as to the joint interest.

Upon proceedings of outlawry, judgment is rendered against the party absent, and it may be collected out of his goods and chattels, lands and tenements. This practice in civil cases is abolished, 2 R. S. 553, § 15; and unless infants, where process cannot be served upon them, are included in the joint debtors’ act, as it is called, there is no mode left by which their property can be reached in any case, even where they are clearly liable upon their contracts.

The judgment, therefore, must be affirmed.

Statutes and regulations cited

Domestic Relations Law p. 615