Cox vs. Bailey. Car when the holder of the bill seeks to enforce its payment. ric vs. Vickery, Douglass' Rep. 653, note. Is not the principle the same, when two or more jointly and severally engage to pay a specific sum of money, notwithstanding some of the parties may be sureties? Is there not a community of interest between the parties so contracting, quoad that particular contract? There is undoubtedly a privity of interest between the parties, although some of them may be sureties, as it is said the defendant is, in this case. In Exall vs. Partridge, Lord Kenyon, said: "Where one person is surety for another, and compellable to pay the whole debt, and he is called upon to pay, it is money paid to the use of the principal debtor, and may be recovered in an action against him for money paid, even though the surety did not pay the debt by the desire of the principal." 8 Term Rep. 310. So'in the case cited from Rolls' Abridgement, in Child vs. Morley, (8 Term Rep. 614,) where a party met to dine at a tavern, and after dinner, all but one of them went away without paying their quota of the reckoning, and that one paid for all the rest; and it was held, that he might recover from the others their aliquot proportions. Upon what principle was the one who paid the whole bill, entitled to recover from the others? Doubtless upon the principle, that the parties had associated themselves together, for the purpose of that particular transaction, and were jointly and severally liable to pay for the dinner, of which they all partook, as a special association of individuals, who were sureties for each other; there was a privity of interest betwen them in respect to that special undertaking, and the payment made by one, of the whole bill, was made for the benefit of all the others. Here the defendant, with three others, jointly and severally promised to pay the sum of money specified in the note. In respect to this contract, they were jointly interested, and the holder of the note had the right to consider them as joint and several contractors, so far as its payment is concerned, as if they had been partners. There being a community of interest between them, in respect to this particular contract, the promise of one to pay it before the Statute bar had attached, must be considered as the promise of all; upon the principle, that each joint contractor, with respect Cox vs. Bailey. to the joint contract, is to be considered as the agent of the others. The payment made by one, from which the promise is to be inferred, accrued to the benefit of all the other joint contractors. Can the other joint promisors derive a benefit from the payment made by one, and repudiate the act, when the legal consequences which result from such payment operate against them? Upon what legal principle can the defendant receive the benefit of the payment made by one of his joint promisors, and not be bound by all the legal consequences which result from that payment? The defendant in effect says, that his copromisor was his agent to make the payment on the note, and extinguish his liability to that extent; but when that act of his agent in making the payment, is sought to be made to operate against him by preventing the bar of the Statute of Limitations, then it is, he repudiates his agency. The defendant in error cited on the argument, Bell vs. Morrison, 1 Peters. Levy vs. Cadet 17, Sergeant & Rawle. Bank of Exeter vs. Sullivan, et al. 6 New Hampshire Rep. In Bell vs. Morrison and Levy vs. Cadet, the promise was made after the dissolution, of the copartnership. The Bank of Exeter vs. Sullivan, covers the point made by the plaintiff in error. In that case, as here, the promise was made before the Statute had operated as a bar, but the great weight of authority, both in England and in the United States, is in opposition to the judgment of the Court in the Bank of Exeter vs. Sullivan. In Whitecomb vs. Whiting, (2 Douglass, 652) Lord Mansfield held, that the payment by one, is payment for all; the one acting virtually as agent for the rest. In Parham vs. Raynal (2 Bingham, 306,) Ch. Justice Best, elaborately considered the question, and sustained the judgment in Whitecomb vs. Whiting, holding that case to rest on the same principle, as decisions with respect to admissions by one of several persons jointly concerned, in other instances; that an anomaly would be created by departing from it; that it had been confirmed in many cases, and not shaken by any authority. See also Wyatt & Hodson, 8 Bingham, 309. Pease vs. Hirst, 10 Barn. & Cress. 122. Burleigh vs. Stott, 3 Barn. & Cress. 36. Smith vs. Ludlow, 6 John. Rep. 267. Johnson vs. Beardslie, 15 John. Fitzgerald vs. Adams and Youngblood. Rep. 3. Beitz vs. Fuller, 1 McCord's Rep. 541. White vs. Hale, 3 Pick. Rep. 291. Sigourney vs. Drury, 14 Pick. Rep. 387. Dinsmore vs. Dinsmore, 8 Ship. Rep. 433. Shelton vs. Cocke, 3 Munf. Rep. 191. Walton vs. Robinson, 5 Iredell's N. C. Rep. 341. Brewster vs. Hardeman, Dudley's Rep. 150. The promise having been made by one of the joint and several promisors, before the Statute had operated as a bar, we are of the opinion, both upon principle and authority, that it took the case out of the Statute as to the other joint and several promisors; therefore, let the judgment of the Court below be reversed. No. 83.-PHILIP FITZGERALD, plaintiff in error, vs. SANDFORD ADAMS and BENnet Youngblood, defendants. [1] The rule requiring the production of the best evidence of which the nature of the case is susceptible, is essential to the true administration of justice. [2] The cases which most frequently call for the application of this rule, are those which relate to the substitution of oral for written evidence. [3.] In all cases where the law requires that the evidence of the transaction should be in writing, no other proof can be substituted, as long as the writing exists, and is in the power of the party. [4.] The jurisdiction given to Justices' Courts, is to hear and determine suits by summons or warrant; and a copy of the process is to be served by the Constable personally on the defendaut, or left at his usual and notorious place of abode. [5.] It is the duty of the Constable to make an entry of service on the summons or warrant, in writing, and sign such return. [6.] These original documents will be presumed to be preserved and of file in the proper repository for the official papers of the Militia District, until the contrary appears, and no secondary evidence can be allowed, until diligent search has been made for this primary proof. Certiorari, in Fayette Superior Court. Decided by Judge. HILL, September Term, 1850. Cox vs. Bailey. to the joint contract, is to be considered as the agent of the others. The payment made by one, from which the promise is to be inferred, accrued to the benefit of all the other joint contractors. Can the other joint promisors derive a benefit from the payment made by one, and repudiate the act, when the legal consequences which result from such payment operate against them? Upon what legal principle can the defendant receive the benefit of the payment made by one of his joint promisors, and not be bound by all the legal consequences which result from that payment? The defendant in effect says, that his copromisor was his agent to make the payment on the note, and extinguish his liability to that extent; but when that act of his agent in making the payment, is sought to be made to operate against him by preventing the bar of the Statute of Limitations, then it is, he repudiates his agency. The defendant in error cited on the argument, Bell vs. Morrison, 1 Peters. Levy vs. Cadet 17, Sergeant & Rawle. Bank of Exeter vs. Sullivan, et al. 6 New Hampshire Rep. In Bell vs. Morrison and Levy vs. Cadet, the promise was made after the dissolutim, of the copartnership. The Bank of Exeter vs. Sullivan, covers the point made by the plaintiff in error. In that case, as here, the promise was made before the Statute had operated as a bar, but the great weight of authority, both in England and in the United States, is in opposition to the judgment of the Court in the Bank of Exeter vs. Sullivan. In Whitecomb vs. Whiting, (2 Douglass, 652) Lord Mansfield held, that the payment by one, is payment for all; the one acting virtually as agent for the rest. In Parham vs. Raynal (2 Bingham, 306,) Ch. Justice Best, elaborately considered the question, and sustained the judgment in Whitecomb vs. Whiting, holding that case to rest on the same principle, as decisions with respect to admissions by one of several persons jointly concerned, in other instances; that an anomaly would be created by departing from it; that it had been confirmed in many cases, and not shaken by any authority. See also Wyatt & Hodson, 8 Bingham, 309. Pease vs. Hirst, 10 Barn. & Cress. 122. Burleigh vs. Stott, 3 Barn. & Cress. 36. Smith vs. Ludlow, 6 John. Rep. 267. Johnson vs. Beardslie, 15 John. Fitzgerald vs. Adams and Youngblood. White vs. Hale, Pick. Rep. 387. Shelton vs. Cocke, 3 Iredell's N. C. Rep. 150. The prom Rep. 3. Beitz vs. Fuller, 1 McCord's Rep. 541. 3 Pick. Rep. 291. Sigourney vs. Drury, 14 Dinsmore vs. Dinsmore, 8 Ship. Rep. 433. Munf. Rep. 191. Walton vs. Robinson, 5 341. Brewster vs. Hardeman, Dudley's Rep. ise having been made by one of the joint and several promisors, before the Statute had operated as a bar, we are of the opinion, both upon principle and authority, that it took the case out of the Statute as to the other joint and several promisors; therefore, let the judgment of the Court below be reversed. No. 83.-PHILIP FITZGERALD, plaintiff in error, vs. SANDFORD ADAMS and BENNET YOUNGBLOOD, defendants. [1] The rule requiring the production of the best evidence of which the nature of the case is susceptible, is essential to the true administration of justice. [2] The cases which most frequently call for the application of this rule, are those which relate to the substitution of oral for written evidence. [3.] In all cases where the law requires that the evidence of the transaction should be in writing, no other proof can be substituted, as long as the writing exists, and is in the power of the party. [4.] The jurisdiction given to Justices' Courts, is to hear and determine suits by summons or warrant; and a copy of the process is to be served by the Constable personally on the defendaut, or left at his usual and notorious place of abode. [5.] It is the duty of the Constable to make an entry of service on the summons or warrant, in writing, and sign such return. [6.] These original documents will be presumed to be preserved and of file in the proper repository for the official papers of the Militia District, until the contrary appears, and no secondary evidence can be allowed, until diligent search has been made for this primary proof. Certiorari, in Fayette Superior Court. Decided by Judge HILL, September Term, 1850. |