
    Brumskill against James and Eaglesum.
    Where the direction as to the return of a commission required it to be enclosed in a wrapper, and deposited in the post office at Toronto by the commissioners, directed to W. B., Buffalo, “ and a certificate thereof indorsed upon the wrapper 'by the commissioners,” and the commission was received from the post office at Buffalo, post marked Toronto; Held, that it was not requisite that the certificate on the wrapper should state that the commission was deposited in the post office by the commissioners.
    Where notes, offered in evidence as proved by a witness examined on commission, were attached to and returned with his deposition, were marked A and B, and had the names of the witness and the commissioners written upon them; and the witness in the deposition described the notes to which he testified, by dates, amounts, &c. corresponding with those of the notes offered, and stated that they were produced to him on his examination, marked' A and B, and that he then wrote his name upon them; and the commissioners in their return certified that the notes attached to the deposition were produced to the witness on his examination, and he signed his name thereon in their presence; Held, that the notes offered in 'evidence were sufficiently identified as those testified to by the witness. •
    The code of procedure has modified the general common law rule, that, in an action upon an alleged joint contract, the plaintiff must recover against all the defendants or be defeated in the action.
    In an action against two persons upon a note alleged to have been made by them in 1846, as copartners in their firm name, it was proved that the note was signed by one in the alleged firm name, and that the other defendant was then his wife; Held, that the plaintiff could recover against the husband alone,
    The action was brought against William L. James and Eliza Eaglesum. The complaint alleged that the defendants, under and by their copartnership name of Eaglesum & Co., made two promissory notes, particularly described in the complaint, and thereby promised to pay to the plaintiff or order the sums mentioned in them respectively. The notes were dated Toronto, Canada, August first, 1846.
    The defendant Eliza did not appear or answer. The defendant James by his answer denied that he, jointly with said Eliza, either under the .firm name of Eaglesum <fc Co. or otherwise made the notes, or that he ever jointly with her either under said firm name or otherwise, made the promises in the complaint alleged.
    The cause was tried at the Brie county circuit, before Mr. Justice Hoyt. The plaintiff proved by the deputy clerk of Erie county that he took the commission, with the depositions annexed shown him, from the post office at Buffalo; that it was enclosed in a wrapper post marked at Toronto, Canada, and directed to Wells Brooks, Esq., county clerk of Erie county, Buffalo.
    The said commission was issued in the cause by the supreme court, directed to two commissioners residing at Toronto, directing them to take the testimony of Clarkson and Lee. Indorsed on the back of the commission was a direction made by Justice Sill at the time it was issued, as follows: “ This commission when executed is to be enclosed in a wrapper and deposited in the post office at Toronto by the commissioners, directed to Wells Brooks, Esq., clerk of Erie county, Buffalo, bíew-York, and a certificate thereof indorsed upon the wrapper across the seals of the same by the commissioners. S. E. Sill, J. S.” When produced, the commission was inclosed in a wrapper under the seals of the commissioners and addressed as directed, and across the seals on the back of the wrapper was a certificate signed by the commissioners, as follows: “We certify that within.is contained the commission, interrogatories, exhibits, depositions and the examinations taken before us in a certain suit, wherein Thomas Brumskill is plaintiff, and William L. James, joined in this action with Eliza Eaglesum, is defendant.” The counsel for the plaintiff offered to read in evidence the said commission and depositions annexed; the same were objected to, on the ground that the certificate of the commissioners indorsed upon the wrapper was not in compliance with the directions made by Justice Sill as to the return, in this—that it did not appear that it was deposited in any post office by the commissioners. The objection was overruled and the depositions admitted as evidence, and the counsel for the defendant excepted. ,
    In and by the deposition of Clark, annexed to the commission, he testified that the defendants carried on business at Toron to, under the name of Eaglesum & Co., from 1845 to 1847; that the signature of Eaglesum & Co. to each of the notes described in the interrogatories and then shown him, one of which notes is marked A, and the witness then described this note in the deposition, by date, amount, &c., and added, “ and on which note I have written my name, and the other of which notes is marked B, and is dated,” &c., and “ on which last mentioned note I have also written my name,” is in the handwriting of the defendant James. In the deposition of Lee, the other witness, he testified, “ the signature of Eaglesum &. Co. to each of the notes described in the testimony of the witness Clark, which are marked A and B and are now shown me, and upon each of which I have written my name, is in the handwriting of defendant James, and he was a member of the firm of Eaglesum & Co. at the date of said notes.” The return of the commissioners, among other things, stated, “ that the witnesses, Clark and Lee, testified as above written; that such testimony was subscribed by the witnesses, who also in the presence of the commissioners, signed their names on the back of the notes attached to their testimony, which notes were produced and shown to them.” The counsel for the plaintiff offered to read in evidence two notes described in the complaint which were attached by wafers to the depositions annexed to and returned with the commission, one of which was marked A and the other B, and upon the back of each was indorsed the names of the witnesses Clark and Lee and the two commissioners. The counsel for the defendant objected to their being read, on the ground that there was no sufficient proof that they were the same notes testified to by the witnesses as signed in the handwriting of the defendant James ; that the return of the commissioners should have distinctly stated that the notes produced on the examination and sworn to by the witnesses were annexed to and returned with the commission, as a part of the evidence taken by virtue thereof. The objection was overruled and the notes read in evidence, and the counsel for the defendants excepted.
    After the plaintiff rested, the counsel for the defendant gave evidence tending to prove that the said firm of Eaglesum &. Co. was composed of the defendant James alone, and that the defendants at the time the notes were made were husband and wife.
    The counsel for the defendant requested the court to charge the jury, that if they found that at the time the notes were made the defendants were husband and wife, they should render a verdict in favor of the defendants. The court refused so to charge, and charged the jury that if tliey found that the notes were signed by defendant James in the name of Eaglesum & Co., and that defendants were at that timé husband and wife, the action could not be sustained against the wife ; but that where an action is brought against two persons, and it turns out that only one was ever liable, the judgment may be against the one so liable; and that therefore, in this case, if they should find that the defendants were husband and wife at the time the notes were made, 'and that the defendant James made them in the name of Eagle sum & Co., their verdict should be in favor of the plaintiff against James alone for the amount of the notes.
    To which refusal to charge as requested, and to said charge and every part thereof, as given, the counsel for the defendant James excepted in due form. A verdict was rendered against the defendant James alone for $578.96, the amount of the notes. The defendant made a bill of exceptions, and the judgment rendered upon the verdict having been affirmed at a general term of the supreme court in the eighth district, he appealed to this court.
    
      H. S. Cutting, for the appellant, insisted upon the following, among other points :
    I. The court erred in refusing to charge the jury, as requested by the defendants’ counsel, that if they were satisfied that, at the time of the making of the notes upon which this action is brought, the defendants were husband and " wife, their verdict must be for the defendants. 1. The code has not changed the rule of the common law in relation to the mis-' joinder of parties defendant, and its effect upon the judgment to be rendered in an action. (Code of 1851, § 274, and opinion 
      
      of Mr. Justice Willard, cited .in the note to that section Voorhies 1st ed. of the Code, p. 229 ; Corning Horner v. Shepard, 3 Pr. R. 19 ; Fullerton v. Taylor and others, 6 id. 259 ; Crandall v. Beach, 7 id. 271; Merrifield v. Cooley, 4 id. 272; Laforge v. Chilson, 3 Sand. 752.)
    ■ The section above referred to provides that a judgment may be rendered, in the discretion of the court, against one or more of several defendants, whenever a several judgment may be prop- ' er. But as the code does not furnish any rule as to the cases in which such judgment may be proper, it must be held to refer to the previously existing practice.
    Mr. Justice Marvin in his opinion in this case concedes, that pnder the rule as it existed previous to the code, the refusal of the judge at the circuit to charge as requested would have been improper; but assumes, in the conclusion at which he arrives, that that rule had been changed by the code, and relies upon the language of the commissioners, cited from their repo'rt, and the case of Ladue v. Van Vechten, (8 Barb. 664.)
    As to the language of the commissioners, it is no part of the action of the legislature. If it were, it can have no application to this case, except tp show that a several judgment, instead of preventing, would cause a failure of justice. It may be here assumed that the defendant James had a set-off against the plaintiff; but as two defendants were joined in the action, whether properly or improperly, he could not avail himself of such set off, (2 R. S. 354, § 18,) but would be remitted to his separate action, and would be compelled to take the risk of the continued solvency of the plaintiff. The case of Ladue v. Van Vechten, if it were good law, (and it is submitted that it is not, 4 Hill, 37,) does not, as is supposed, decide this case. Here, the defendants were sued as joint contractors.- There, the contract was joint and several; and the decision was based expressly upon the ground that the defendants might be made severally liable.
    2. The defendants were sued as parties to a joint contract, as appears by the complaint. But if they were husband and wife, one of them never was a party to such contract, and could not be made liable. There was, therefore, a misjoinder, and the court should have instructed the jury to render their verdict for the defendants. (1 Chit. Pl. 44, 8th Am. ed.; Id. 59, citing a case from Palmer, 312; Weall v. King, 12 East, 452; Bull. N. P. 129 ; Max v. Roberts, 5 Bos. & Pul. (2 N. R.) 454; 1 Saunders, 207 a, note; Cooper v. Whitehouse, 2 Car. & P. 545, (R. C. L. 25, 585;) Siffkin v. Walker, 2 Camp. 308; Elmendorf v. Tappan, 5 John. 176; Livingston's Ex'rs v. Tremper, 11 id 101; Robertson v. Smith, 18 id. 478; Mannahan v. Gibbons, 19 id. 109; Platner v. Johnson, 3 Hill, 476; Miller v. McCagg, 4 Hill, 36.) The rule established by the above authorities is, that if too many persons be made defendants, and it does not appear upon the face of the pleadings, the plaintiff may be nonsuited on the trial if he fail in proving a joint contract, or the verdict must be for the defendant. (2 N. R. 457.) Nor can it make any difference, in the application of the rule to this case, that the defendant James pleaded separately, and a default was taken against the other defendant. (19 Wend. 643; 4 Hill, 35.)
    
      N. Hill, Jr. for the respondent, insisted upon the following, among Other- points:
    I. There was no joint liability of the defendants. The defendant Eliza Eaglesum had a personal defense to the action, and never was liable. (Fullerton v. Taylor and others, 6 How. Pr. R. 259, No. 7, March, 1852.)
    II. A several judgment in this action was proper, because the plaintiff would have béen entitled to a judgment against the defendant James, if the action had been against him alone. (Code of 1851, §136; Id. § 274; § 136, sub. 3; The President &c. of Mechanics' Bank of Albany v. Rider and Wilbur, 5 How. Pr. Rep. 401.)
   Gardiner, Ch. J.

The first exception relates to the insufficiency of the certificate of the commissioners, in not stating, in pursuance of the direction of the judge who allowed the commission, that it was by them deposited in the post office. The direction indorsed on the commission was as follows: “ This commission when executed is to be enclosed in a wrapper, and deposited in the post office by the commissioners at the city of Toronto, directed to Wells Brooks, Esq.", county clerk of the county of Erie, Buffalo, Erie county, New-York, and a certificate thereof indorsed upon the wrapper across the seals of the same by the commissioners.” The meaning of the direction is plain. The word “ thereof” refers at most to those acts by the commissioners, to which they could certify before parting with the commission. It cannot be construed as including a deposit of the papers in the post office at Toronto, without the absurdity of supposing that the judge intended that the commissioners should certify to an act done by them, before its performance. Such a certificate would carry a falsehood upon its face. Every one would know that it could not have been made after the deposit; for the commission would then be in the custody of the post office department. And the receipt of the documents through the mail, would be stronger evidence that the endorsement was made before the deposit,- than the most precise and unscrupulous certificate could be of the contrary. The direction, if understood as the defendant insists it should be, would be void. There is nothing in the statute requiring it. And no judge, under color of directing the manner in which a commission should be returned, can deprive a party of the benefit of the statute, unless he can procure a commissioner who will certify to a falsehood. The objection was properly overruled.

The next exception was to the decision of the judge in allowing the notes annexed to the commission to be read' in evidence. The objection was, that there was no sufficient evidence that they were the same notes, proved by the witnesses examined by the commissioners. The notes were respectively marked A and B. They were referred to by the witnesses as being thus marked ; a copy of each was also given, with a statement, that the witnesses had. written their names upon each note. All this appeared in the depositions.

The commissioners then certify, that the witnesses testified as above written, that they subscribed their names on the back of the notes attached to such answers, which were produced and shown to them. The notes offered in evidence corresponded with the description given, in every particular, and were indorsed with the names of the commissioners in pursuance of the statute. (2 R. S. 394, § 16, sub. 3.) This is all that is necessary to identify the papers. The question indeed w;as not very confidently argued by the counsel for the defendants, and was properly diposed of upon the trial.

The defendants’ counsel requested the judge to instruct the jury, “ that if they were satisfied that, at the time of making the notes upon which the action was brought, the defendants were husband and wife, their verdict must be for the defendants.” This was refused; and the judge charged, that under the circumstances they might find a verdict against the husband alone. To this refusal, the defendants excepted. Whatever may have been the rule at common law, when husband and wife were joined in an action upon contract, made during coverture, there is no doubt that the ruling of the judge is sustained by the provisions of the code of procedure. The 274th section provides, that judgment may be given foiy or against, one or more of several defendants; and by the third subdivision of the 136th section, if all the defendants have been served with process, judgment may be taken against any, or either of them severally, when the plaintiff would be entitled to such judgment, if the action had been against them, or any of them alone. The defendant admits that James, the husband, would have been liable if he had been the only defendant, as he obviously would, since the contract counted upon was in law his, exclusively. Ho relics upon the misjoinder, and upon the general rule of the common law, that where a joint contract is the subject of the suit, the recovery must be against all the defendants, or neither. This was the inconvenience the above provisions of the code were designed to remedy, and no case is likely to be presented, in which their application would be more manifestly equitable and just than the present.

The judgment of the supreme court should be affirmed.

Denio, Johnson, Allen, Edwards and Darker, Js., concurred in the foregoing opinion. Selden, J., dissented on the question last discussed.

Judgment affirmed.  