
    Smith & Barlow vs. Ballantyne & McNaughton.
    1843. January 23.
    Where a suit was brought against two persons as joint debtors and both appeared and put in separate defences to the suit, and one of them died before the trial, Held, that the judgment subsequently recovered against the survivor was not evidence of a joint indebtedness as against the representatives of the decedent, upon a bill filed against them to charge hiá estate with the debt; and that the complainant in his bill should make a distinct allegation that a joint indebtedness existed, and that he was bound to prove such allegation if it was denied.
    Where two persons are jointly indebted, and one of them dies leaving the survivor insolvent, the creditor may file his bill to obtain payment out of the estate of the decedent, whether the joint debtors were partners or otherwise.
    This was an appeal from an order and decree of the vice chancellor of the third circuit overruling the demurrer of the defendants, and directing them to pay the complainants’ judgment, with costs. The bill stated that the complainants recovered a judgment in the supreme court against R. Kenyon as survivor of D. Ballantyne, and issued an execution thereon to the sheriff of the county in which Kenyon last resided, which execution was afterwards returned unsatisfied, and that the judgment remained unpaid ; that the suit in which the judgment was recovered was commenced against Kenyon and Ballantyne in the lifetime of the latter, and that they both appeared and put in separate pleas, and before the trial of the suit Ballantyne died leaving sufficient property to pay all his debts and liabilities ; that the defendants administered upon his estate, and had ample assets to pay all his debts ; and that Kenyon, against whom the judgment was recovered as survivor, had not since the commencement of that suit possessed any property whatever. And the complainants thereupon prayed a decree for the payment of their judgment, out of the estate of the decedent in the hands of the defendants.
    To this bill the administrators of Ballantyne filed a general demurrer for want of equity.
    
      
      T. H. Wheeler & R. W. Peckham, for the appellants.
    There is no allegation in the bill of the indebtedness of Ballantyne. The judgment against Kenyon is no evidence of Ballantyne’s joint indebtedness, as against his representatives. As against one of two defendants, not served with process, a judgment entered against both is evidence only of the extent of the plaintiff’s demand, after his liability shall have been established by other evidence. (2 R. S. 377, § 1, 2 and 5. 23 Wend. 293.) There is no averment in the bill of the joint indebtedness of Ballantyne. On joint and several contracts, the representatives of one of the debtors, (who has died,) are liable at law. (2 John. Ch. R. 508. 3 Paige, 167.) If the complainants have a remedy at law, they cannot have the relief prayed for in their bill. (Comyn on Con. 472, 517. 2 Burr. 1194. 1 Chit. Pl. 37.) Ballantyne may have been surety for Kenyon. The contrary is not averred in the bill. If a surety, his estate, at • his death, was discharged from the debt, at law; and a court of equity will not charge his personal representatives. (2 Wash. Rep. 136.) If the complainants are entitled to any relief, it is to the amount of the original debt and interest only, not the costs. And pa ment is to be made only after all the other separate debts of Ballantyne are paid. (3 Paige, 167, 517.) If the demurrer is overruled the administrators of Ballantyne are entitled to put in an answer. They are not liable to the costs of this suit. Nor can the assets of the deceased be made liable to the payment of such costs.
    
      J. A. Hughston & A. Taber, for the respondents.
    The judgment against Kenyon is conclusive evidence of the liability of both defendants, the declaration having been personally served on both and both having appeared by attorney. (2 R. S. 299, § 2, 2d ed. 3 John. 20.) The bill must be founded on the judgment and not on the original promise. (6 Wend. 209, 210.) The original promise is merged in the judgment. (23 Wend. 293.) The merger did not discharge the estate of Ballantyne. (6 
      Wend. 209.) Where one of two or more defendants dies before final judgment, the suit proceeds against the survivors. (2 R. S. 307, 308, § 1, 2d ed. 2 Dunl. Pr. 747.) On demurrer the indebtedness of Kenyon and Ballantyne must be assumed to be joint. If Ballantyne was surety, still his indebtedness to the complainants was joint. The representatives of a deceased joint debtor, though discharged at law, are liable in equity. (1 Chit. Pl. 37, 38, 79, 80, and notes. 1 Caines’ Cas. in Err. 122.) The remedy against Kenyon, the survivor, has been exhausted at law i ■ and the remedy against the representatives of Ballantyne is now perfect. (1 Caines’ Cas. in Err. 121.)
   The Chancellor.

Even if the decision was right in relation to the demurrer in this case, there was nothing to justify the making of a final decree without giving the defendants an opportunity to come in and deny the allegations made against them in the bill. In that respect therefore the decree appealed from is clearly erroneous.

But I think the order overruling the demurrer was itself erroneous, as there is no distinct averment in the bill that the claim for which the complainants recovered a verdict and judgment against Kenyon, as survivor, after the death of Ballantyne, was in fact a debt which was due from Kenyon and Ballantyne jointly at the time of the death of the latter. The recital of the recovery of the judgment against the survivor, which in the record of the judgment, of course purports to have been obtained upon a joint promise, is not such an averment of the existence of a joint debt as the defendants could safely take issue upon. For the production of the judgment record itself woúld establish all that is alleged in the bill, even if there never was in fact any joint indebtedness originally. A verdict obtained against the survivor, after the death of Ballantyne, was no evidence of a joint indebtedness against the latter. For his representatives had no right to interfere with the suit in any way, either to contest the existence of a joint promise originally, or if one had existed to show that it was performed, or that Ballantyne had been discharged therefrom before the commencement of that suit. A mere admission by Kenyon, who was wholly destitute of property, that he and Ballantyne were jointly liable, would have been sufficient to entitle the complainants to a verdict against him as survivor. (Sangster v. Mazaredo, 1 Stark. Rep. 161. Whitney v. Sterling, 14 John. Rep. 215.)

The complainants upon showing the existence of a joint debt against Kenyon and Ballantyne at the time of the death of the latter, and showing also, as he has done in this bill, that Kenyon is wholly destitute of property, will have an undoubted right to claim payment out of the property of the decedent, whether such debt was a partnership debt or a joint indebtedness of any other description. But to entitle the complainants to any relief against the estate of the decedent they must amend their bill, by stating the existence of a joint indebtedness by Kenyon and Ballantyne to them, and stating the nature and particulars of that indebtedness, in the same manner as if no suit had ever been commenced thereon ; to enable the defendants to make a proper defence thereto if they have any. And if such indebtedness is not admitted by the answer, the complainants must be prepared to establish it by proof in the ordinary way.

The decree appealed from is therefore reversed with costs, and the demurrer allo’wed. And the complainants must pay the costs, including the costs upon the demurrer, and amend their bill within sixty days, or the bill must be dismissed with costs to be taxed.

Decree accordingly.  