Sharpe v. Jones
| Decision Date | 31 May 1819 |
| Citation | 7 N.C. 306 |
| Court | North Carolina Supreme Court |
| Parties | STARKEY SHARPE v. WILLIAM and JAMES JONES, executors of the last will of JAMES JONES, deceased, and against JOHN WINBORNE. |
Debt on a note sealed by one obligor, but not sealed by the other. The Defendants plead severally. The executors of one obligor pleaded the "general issue, and fully administered." The other obligor pleaded the "general issue and statute of limitations." The Jury found the plea of "the statute of limitations," they found against the other Defendant, from which he appealed, and in the Superior Court it was moved to dismiss the appeal, because he alone had appealed, and there were other Defendants. Motion to dismiss disallowed; for,
By Laws 1789, ch. 57, suits may be brought and prosecuted on all joint obligations and assumpsits, in the same manner as if they were joint and several.
If an assumpsit be brought against two, the Jury may find against one and in favor of the other; so that the judgment to be given against the parties in this action is not joint.
Laws 1777, ch. 2, gives the right of appeal to any person, either Plaintiff or Defendant, dissatisfied with the sentence, judgment, or decree of the County Court.
The rule in writs of error is, that all persons against whom a joint-judgment is given must join in it; or, if any of them refuse, he or they must he summoned and served.
There is an absurdity in requiring a party to join in the prosecution of a writ of error, in whose favor the judgment below had been rendered; and summons and severance apply only where the judgment was given against a party who will not join. The like rule prevails with respect to appeals.
As to the plea of the statute of limitations: The note was given and became due in 1810; suit was brought in 1816. The act of 1814, ch. 17, does not allow three years after its passage for bringing actions of debt upon simple contract, where the cause of action then existed; but limits the bringing of the action to three years "after the cause of action accrued." And here the cause of action having accrued in 1810, the action was barred the moment the act was passed.
This was an action of debt brought upon the following note, to-wit:
We promise to pay Starkey Sharpe, one hundred pounds, with interest from 1 January last, for value received, aswitness our hands and seals this 22 June, 1810.
JAMES JONES, (SEAL.)
JNO. WINBORNE, (SEAL.)
Witness: JNO. ASKEW.
The suit was commenced in May, 1816, and the Defendants pleaded severally. The executors pleaded "general issues and fully administered." The Defendant, Winborne, pleaded the "general issue and statute of limitations." Upon the trial in the County Court, the jury found for the executors upon their plea of "fully administered," and against Winborne upon his plea of "the statute of limitations." From the judgment of the County Court, Winborne appealed, and in the Superior Court a motion was made to dismiss the appeal, upon the ground that Winborne alone had appealeld. The case was sent to the Supreme Court upon the motion to dismiss the appeal, and upon the further point made in the case, whether under Law 1814, ch. 17, the Defendant, Winborne, could avail himself of the statute of limitations in this action, the note having been executed and become payable before the passage of the act.
Upon the first point, the Court were unanimous that the appeal was rightfully granted, and the motion to dismiss should be disallowed. Upon the second point, TAYLOR, Chief Justice, and HENDERSON, Judge, were of opinion that the
statute of limitations barred the Plaintiffs' demand; and HALL, Judge, was of a different opinion.
Engs. v. Donithorne, 2 Burr, 1196. Postan v. Stanevy, 5 East. 261. But the remedy is extended by act of Assembly against the heirs,executors and administrators of the deceased obligor, as well as against the survivor; and suits may be brought and prosecuted on all joint obligations and assumpsits, in the same manner as if they were joint and several. Act of 1797, ch 57. In this case the pleas were several: "The general issue and fully administered" were entered for the executors, and "the general issue and statute of limitations" for Winborne. The finding of the Jury was several; for it does not appear that a judgment of quando was prayed against the executors; they went without day, while a judgment must be supposed to have been rendered against Winborne upon the statute of limitations.
It has been decided in this Court, that under the broad expressions of the act of 1789, if an assumpsit be brought against two, the Jury may find against one and in favor of the other, thus severing by their verdict a joint contract, upon which the suit was brought. From all this it is evident, that the judgment against the parties in this action was not joint. Now the rule in writs of error is, that all persons against whom a joint judgment is given must join in it; (Walter v. Stokoe, 1 Ld. Ray. 71) or, if any of them refuse, he or they should be summoned and severed. Carth. 8. But if there be five Defendants, and three be acquitted, the writ of error be prosecuted by the two alone. Vaughan v. Loriman, Cro. Jac, 138. In some cases they must all join, where the judgments are in their nature, several; as where an action is brought against three executors, one of whom pleaded "plene administravit" generally, upon which the Plaintiff took judgment against him of assets quando, &c. and the other two Defendants pleaded judgments, et plene administraverunt ultra: the Plaintiff replied that the judgments were obtained by fraud; and, upon the trial, had a verdict: whereupon those two Defendants brought a writ of error, and the Court held that all three ought to have joined. 1 Wilson, 88. But though the
judgments in that case were several, yet they...
To continue reading
Request your trial