HENRY M. PEARSON et a. vs. SILAS PARKER

f' >'0f. for the defendant.

ie questions raised are, 1st. whether the plaintiffs can maintain a joint action against the defendant ? 2d. if they can. to what sum are they entitled ?

The general doctrine is against the maintainance of the plaintiffs’ suit; and, unless there be found some good exception in their favor, their suit cannot be sustained.

The general doctrine is laid down in 3 B.fyP. 235, in Brand et a. vs-Bnulcot. That doctrine is against that, for which the plaintiffs contend.

The case in 5 East 225 is the only exception, found in the books, in favor of the plaintiffs’ action. That trial was in June, 1804, and the whole seemed to turn upon the simple fact, that the plaintiffs’ attorney had paid the debt upon the joint credit of the plaintiffs.

That must have been the point, on which the case was decided; because the court are particular in making the attorney file his affidavit of the manner and circumstances of Ms payment. And the words, that “ the attorney paid the debt,” are in italics. In that case, the attorney says, he discharged the whole debt on the joint credit of the plaintiffs. It is to be remembered, that C. J. EUenborough gave the opin-ión.

In 5 Esp. Rep. 194, Kelby ⅜ Vernon vs. Steel, decided the very next year, there is no reference to the case in East, though both decisions were made by the same judge. In this case, the plaintiffs and defendant were jointly bound to the sheriff of Wiltshire by bond. In a suit on this bond, recovery was had against all the obligors, and the whole amount cob lected of the plaintiffs. And the sheriff in his receipt says. “ received from Kelby ⅜- Vernon the sum of £ — —,” being the payment of the whole sum levied under the several writs.

Plointiffs contended, that' a joint action should be sustain-. ed; as it appeared by the receipt, that the payment was joint.

Lord Ellenborough. The receipt being joint, cannot alter the manner of the transaction. And the mode of payment cannot affect it. There must be nonsuit of the plaintiffs.

The receipt of Greely, in the present case, is like the one in B. P. And the defendant thinks the manner, by which the plaintiffs obtained the money, immaterial.

It is fully apparent, that the mode of payment then, and not the means, by which the plaintiffs obtained the money, constitutes the difference between the cases in East and B. ⅜ P. That the agent of the plaintiffs paid it in one instance, and the plaintiffs paid it themselves in the other.

I see no reason, why the money being lent to the plaintiffs, on their.note to Mr. Moody, should operate to overthrow a long and well established principle of law.

This action would prevent the defendant from offering any thing by way of set-off to either of the plaintiffs, though he may have paid them severally the amount of their claim. It might then operate great injustice. Comyti on contracts adopts the law as laid down 3 B. 8f P. His treatise was published in 1819, with additional notes and references; still the case of'East is not mentioned; nor is there any expression to do away, or even shake, the common doctrine, as reported in B. fyP.2vol. 185. Comyn,s first edition was, in 1807, three years after the decision in East; and it is a little strange, that a case, overturning the general law on that subject, should have escaped him, or he thought unworthy of notice.

But, if the plaintiffs recover in this action, it must-be only for the money actually paid, and not for the sum secured by their note.

It is settled, that a bond, and warrant of attorney, is not a payment, though the former obligation be given up, and can-celled. 3 East 169. Com. on Con. 2, 182. — Johns. 182, Powell vs. Smith, and cases there cited.

delivered the opinion of the court.

It is not now to be doubted,that,when a surety satisfies the debt of his principal by giving his sole note to the creditor, who accepts it in discharge of the original contract, it is as much a payment by him in respect to the principal, as if the money had been actually advanced.—2 N. H. Rep. 333, Willie vs. Green.—5 Mass. Rep. 299, Thatcher et a. vs. Dinsmore.—3 ditto 403, Floyd vs. Day.—11 Johns, Rep. 464, Beardsley et a. Ex’rs. vs. Root.

In the present case, it is immaterial to the defendant, ⅛ what way the plaintiff satisfied the debt, provided he were discharged from his liability to Caldwell. The defendant is, therefore, evidently liable to the plaintiffs either jointly or separately, in an action for money paid and advanced by them for his use.

The sole question then is, whether the plaintiffs are entitled to maintain a joint action.

The principles, by which this question must be decided, are well settled.

The rule is, that where different persons have distinct and separate claims, though standing in the same relative situation, or where their legal interests are several, if there be no express contract with them jointly, they must enforce their claims by several suits.—1 Chitt. Plead. 8.

Thus, if there be two persons, and each of them advance money for a third, they cannot maintain a join action; but each must sue severally.—3 B. & P. 235, Brand et a. vs. Boulcott.—1 East 220, Birkley et a. vs. Presgrave.

Rut if the interest of several persons be joint, as that of partners, or their claim respects their joint funds, they may and ought to join. Thus if the money, which two persons pay for a third, be raised, on their joint credit, their proper' remedy for the money, so paid, is by a joint action against him, for whom the payment was made.—1 Chitt. Plead. 8, 9.—5 East 225, Osborn et a. vs. Harper.—2 D. & E. 282, Graham et a. vs. Robertson.—1 Saund. 153.—2 Saund. 116, n. 2.—3 B. P. 150, Cook et a. vs. Bacheldor. Apply these principles to the case now under consideration, and the result is apparent. The $100 paid by the plaintiffs wag borrowed by Moody upon their joint credit; and the bal-anee was satisfied by their joint note to Caldwell, in relation to this transaction, the plaintiffs may be considered as partners; and the fund, from which the payment was made, as their common stock. Thefir interest is then joint; and the action is properly brought in the name of both. There must, therefore, be