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Opinion of the Court, per CHURCH, Ch. J.

question to be determined in this case is whether there was evidence from which the jury might have reasonably inferred that those in charge of the schooner knew the real facts, and that the barges were a part of the tow. It is not impossible that they did know it, and supposed that they could cross from one side of the channel to the other by sailing over the hawser, or otherwise. If so, they were not deceived by the light on the barge; and it cannot be said that the absence of proper lights contributed to the injury.

The same remark is true with reference to the defective lights on the steamer; and, besides, the plaintiffs are not responsible for the negligence of those in charge of the steamer, as they had no control over them, or the movements of the steamer or her appointments.

In determining whether the nonsuit was properly granted we are, of course, confined to the plaintiffs' evidence alone, without explanation or contradiction; and that evidence tended to prove that the night was not so dark but that objects could be distinctly seen at a considerable distance; that those on board the schooner could and did see the steamer, and the canal boats in tow, and passed close to the latter; and that they could also see the barges which were immediately in rear of the canal boats, indicating thereby, as it is claimed, that they belonged to the tow, and could not have been at anchor; and, in addition to this, that there was ample room for the schooner to pass in the channel on the west side of the barges; and that there was no necessity, nor apparent propriety, for the maneuvre of the schooner in suddenly, changing its course to cross between two tiers of moving boats in a space of about ten rods. Might not the jury have found from these facts that those in charge of the schooner knew that these barges belonged to the tow, and mnst have been attached by a hawser; and that the attempt to pass between them and the canal boats was unnecessary, imprudent and negligent? I think the evidence is capable of such a construction; and if it had been submitted to the jury, and they had so found, the court could not, according

Statement of case.

to settled rules, have set aside the verdict as against evidence; and this is the test for determining the propriety of the nonsuit. It is not necessary for this court to decide that they would find for the plaintiff upon this evidence. It is enough that a jury would be justified in so finding; and a verdict either way, upon the evidence alone, could not, in my judg. ment, be disturbed. There was evidence for the jury to consider, tending to repel the presumption that the defective lights caused or contributed to the injury, and the jury was the only proper tribunal to weigh and determine the proper effect of it.

We feel constrained, therefore, to hold that the nonsuit was improperly granted.

The judgment must be reversed and a new trial granted, costs to abide the event.

All concur except PECKHAM, J., not sitting.
Judgment reversed.

ANDREW C. GETTY, Trustee, etc., Respondent, v. JOHN

BINSSE, Executor, etc., et al., Appellants.

49 385 111 309

49 385 138 207

The contract of a surety is the measure and limit of his liability. Upon

the death of one of the makers of a joint promissory note, who was not liable for the debt irrespective of the joint obligation, but who signed the note simply as surety, his estate is absolutely discharged both in law and equity, and the survivors only are liable.

(Argued April 22, 1872 ; decided May 21, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the first judicial department in favor of plaintiff, entered upon an order overruling defendants' exceptions and directing judgment upon a verdict.

The action is brought to recover of the personal repre sentatives of John La Farge, deceased, the amount of a joint promissory note executed by said La Farge and one L. E. Lahens. The facts sufficiently appear in the opinion.

SICKELS – VOL. IV.

49

Statement of case.

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T. J. Glover and Francis Kernan for the appellants. The action was barred by the statute of limitations. (Hallet v. Righton, 13 How. Pr. R., 43; Wortmann v. Same, 17 Abb., 67.) The payments of interest by the surviving joint co-promissor did not prevent the statute of limitations from barring the claim as against La Farge's executors. (Lane v. Doty, 4 Barb., 330; Winshell v. Hicks, 18 N. Y., 258.) The note being joint only, the plaintiff cannot recover thereon against La Farge's executors. (17 N. Y., 374; 16 Barb., 289; Towers v. Moor, 2 Vern., 99; 1 Eq. cas. ah., 93 K., pl. 1; 1739, per Ld. HARDWICKE; Simpson v. Vaughan, 2 Atk., 32.) . When a party enters into a bond or promissory note as surety merely, equity will not extend or add to the liability. (Simp8on v. Field, 2 Ch. Cases, 22, A. D. 1679; Et parte Kendall, 17 Vesey, 526; tuner v. Powell

, 2 Nerin., 30; Story's Eq. Jur., SS 162, 164; Cur., per MARSHALL, Ch. J.; Hunt v. Rousmanier, 8 Wheaton, 212, 213; Ilunt v. Rousmanier's Admr., 1 Peters, 16; Weaver v. Skyrock, 6 Sergt. & Rawle, 262; Pecker v. Julius, 2 P. A. Brown's R., 33, 34; Harrison v. Minge, 2 Wash., Va. R., 136; Kennedy v. Carpenter, 2 Wharton, 361; U. 8. v. Price, 9 Howard's U. S. R., 92, see Judge WOODBURY's dissenting opinion, pp. 102, 103, 105, 106, 107; Carpenter v. Provost, 2 Sandf., S. C. R., 538; Other v. Iveson, 3 Drewry, 177; Jones v. Beach, 2 De Gex, McN. & Gordon, 886; Wilmer v. Currey, 2 De Gex & Smales, 347; Fielden v. La Farge's Ecrs., U. S. Circt. Ct., Aug., 1869, MS.; 6 Blatchford C. R., 524; Waters v. Riley, 2 Harris & Gill, 311; Dorsey v. Dorsey's Ecrs., 2 Harris & Johns., 480, note; Bradley v. Burwell, 3 Denio, 65; Mr. Cooper's note to Justinian's Institutes, p. 462; Smith v. United States, 2 Wal., 234; 2 Caine's Cas. in Error, 29; 18 N. Y., 276.) In the case of the death of a surety in a joint obligation, where there is no pre-existing liability, the creditor cannot have relief in equity against the surety's estate. (Wilkinson v. Henderson, 1 Mylne & Keene, 582; Rawstone v. Parr, 3 Russ, 539; Jones v. Beach, 2 D. G. McN. & G., 886; Other v. Iveson, 3 Drewry, 177.) A mere

Opinion of the Court, per PECKHAM, J.

oral speech, touching the matter of a contemplated contract, is not admissible to change the character or import of the written contract. (McAskie v. McCay, Irish Reports Equity, vol. 2, p. 447; Halliday v. Hart, 30 N. Y., 474, 493; Renard v. Sampson, 2 Kern, 561; Fellows v. Prentiss, 3 Den., 512.) The statute of frauds avoids parol promises to answer or become responsible for the debt of another. (Mallory v. Gillett, 21 N. Y., 412; Duffy v. Wunsch, 43 N. Y., 243,

James C. Carter for the respondent. The inclination of courts of equity is to charge the estate of a deceased debtor with all his obligations, joint as well as several. (Underhill v. Howard, 10 Ves., 209, 227; Story's Eq. Jur., SS 162, 164; Simpson v. Vaughan, 2 At., 31.) In the view of a court of equity, all joint contracts and obligations, whether of copartners or others, are deemed several as well as joint. (Sleck Case, 1 Mor., 564; Lane v. Williams, 2 Vern., 292; Bishop v. Church, 2 Ves., Sr., 100; Thomas v. Fraser, 3 Ves., 573; Wilkinson v. Henderson, 1 Mylne & Kean, 582; Divergnes v. Noble, 2 Russ. & M., 495; Ec parte Kendall, 17 Ves., 520; York v. Peck, 14 Barb., 644.) Wherever a court of equity sees that in a contract, joint in form, the real intention of the parties was that it should be joint and several, it will give effect to such intention. (2 Williams on Executors, 5th Eng. ed., 1580; Lane v. Williams, Vern., 277, 292.)

PECKHAM, J. No question is made as to the pleadings, whether this is a suit at law or in equity, therefore, none is. considered. I proceed, therefore, directly to the merits. The testator, La Farge, signed a joint note with one Lahens for $15,000, at a year from date, and dated February 4th, 1858. He was a surety on the note. The note was not paid; and after the decease of La Farge the surety (Lahens, the joint maker, surviving him), this suit was commenced against his representatives to recover upon the note. The testator was under no liability to the plaintiff, legal or equitable, irre

Opinion of the Court, per PECKHAM, J.

spective of or prior to the making of the note. Lahens had been and was a surety for one Hoguet for money he (Hognet) had received as trustee; and this note was given to secure the balance due from Hoguet. The question is, are the representatives of La Farge liable thereon?

It is a well settled principle that, in case of a joint obligation, if one of the obligors die, his representatives are, at law, discharged, and the survivor alone can be sued. (Towers v. Moor, 2 Vern., 98; Simpson v. Vaughan, 2 At., 31; Bradley v. Burwell, 3 Den., 61; Richter v. Poppenhausen, 42 N. Y., 373.)

It seems to be eqnally well settled that if the joint obligor, 80 dying, be a surety, not liable for the debt, irrespective of the joint obligation, his estate is absolutely discharged, both at law and in equity; the survivor only being liable. In such case, where the surety owed no debt outside and irrespective of the joint obligation, the contract is the measure and the limit of his obligation. He signs a joint contract and incurs a joint liability, and no other. Dying prior to his co-maker, the liability all attaches to the survivor.

Simpson v. Field (2 Cases in Ch., 22), a case in some respects like the one at bar, and decided in 1679, the chancellor held the surety discharged, as he was “not bound by law.” In Sumner v. Powell (2 Merival, 30) Sir WILLIÁM GRANT, Master of the Rolls, said: “It has never been determined that every joint covenant is, in equity, to be considered as the several covenant of each of the covenantors." He says he had occasion to examine, and found no such general proposition anywhere laid down. “When the obligation exists only by virtue of the covenant, its extent can be measured only by the words in which it is conceived." This judgment was sustained on appeal, after full consideration, by Lord Chancellor ELDON. (1 Tur, and Russ, 423.)

Story lays down the same doctrine. (Story's Eq. Jur., $$ 162, 163, 164, and cases there cited.) In Harrison v. Field (2 Wash. R., Va. Court of Appeals, 136) the court held the estate of a surety discharged. As it was discharged at law it

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