
    John Burgoyne, Administrator of James C. Ludlow, deceased, and George C. Miller, v. The Ohio Life Insurance and Trust Company.
    At common law, the death of one of the joint makers of an obligation, extinguished all remedy at law against his estate.
    No action at law could be maintained against his personal representative, either jointly with the survivor or by a separate suit.
    In such case relief was afforded in chancery, but only upon condition that the remedy'against the survivor had proved fruitless.
    The principle of the common law was abrogated by the 90th section of our administration law, (Swan’s Rev. Stat. 378,) and the estate made liable in the same manner “ as if the contract had been joint and several.”
    The 38th section of the code of civil procedure allows all persons severally liable upon the same instrument, to be included in the same action, at the option of the plaintiff.
    This section permits the joinder of the survivor, and the personal representative of the deceased obligor, in the same action, whether the contract is in terms joint and several, or made so by the 90th section of the administration law; and authorizes a several judgment to- be rendered against each.
    This is a petition in error to reverse the judgment of the Court of Common Pleas of Hamilton county. Reserved in the District Court.
    
      Woodruff & Hopkins, and Ball, for plaintiffs in error.
    
      Worthington & Matthews, for defendant in error.
   Ranney, C. J.

The action in the court below, was brought upon a joint and several promissory note signed by Ludlow, Miller, and Dudley; the last of whom was not served with process. The demurrer filed by Ludlow’s administrator, was overruled, and a several judgment, in due form, entered against him to be levied of the goods, etc., of the intestate, and also a judgment against Miller on default. It is now insisted that these several parties could not be joined in the same action; that the obligation must have been treated by the creditor as either joint or several; in the one ease warranting only a single judgment against the survivors, and in the other, requiring a separate action against each of the parties or their personal representatives. By a settled rule of common law, the death of one of the joint makers of an obligation, extinguished all remedy at law against his estate. If the contract was joint, the action must be joint, and a joint judgment must follow. But as the same judgment could not be rendered against the survivor, and the personal representative of the deceased party, the consequence was, that no action at law could be maintained against the personal representative, either jointly with the survivor or by a separate suit. 1 Chitty’s Pl. 187 ; Brigden v. Park, 2 B. & C. 424; Ashby v. Ashby, 7 Id. 444; Bemott v. Field, 7 Cow. 58 ; Corner v. Shew, 3 M. & W. 350.

In such cases relief was afforded in chancery; but only when a necessity for such interposition was shown to exist; and, therefore, only upon the condition that the remedy at law against the survivor, had proved fruitless. 3 Denio 65 ; 2 J. C. Rep. 508 ; 1 Story’s Eq., sec. 162 ; 11 Paige Rep. 80 ; 10 Id. 101.

And inasmuch as no equities arise against a surety, and he is only legally bound upon the strict terms of the obligation into which he has entered, there is no small show of authority in the early eases for affirming, that no such interference can be invoked against the estate of a party thus situated. Hoar v. Contanien, 2 Bro. C. C. 27; Sumner v. Powell, 2 Mer. 30; Ex parte Kendall, 17 Ves. 519 ; Weaver v. Shryork, 6 Serg. and R. 262 ; 1 Story’s Eq., sec. 164.

In view of the difficulties which surrounded this subject at the common law, legislation became imperative; and it has been fully supplied. By the 90th section of the act to provide for the settlement of the estates of deceased persons, (Swan’s Rev. Stat. 378,) it is enacted, that “ when two or more persons shall be indebted in any joint contract, or upon a judgment founded upon any such contract, and either of them shall die, his estate shall be liable therefor, as if the contract had been joint and several, or as if the judgment had been against himself alone.” This statute effected an entire abrogation of the common law principie to -which allusion has been made ; and left the estate of the deceased joint debtor liable to every legal remedy, as fully as though the contract had been joint and several. Until the passage of the act to establish a code of civil procedure, it is very true, his personal representative and the survivor could not be sued in the same action. But by the 38th section of that act, it is provided, that “ persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff.” And the 371st section allows a several judgment to be given against any one of the defendants, as the nature of the case may require.

In the opinion of the court, these sections permit the joinder of the survivor or survivors, and the personal representative of the deceased obligor, in the same action, whether the contract is in terms joint and several, or made so by the 90th section of the administration law upon the death of a joint obligor ; and authorizes a several judgment to be rendered against each, according to the nature of their respective liabilities. We are aware that these provisions of our code, are almost literally copied from corresponding provisions in the code of New York; and that a different construction was placed upon them by a single judge of the supreme court of that State, in the case of Morehouse v. Ballou, 16 Barb. Rep. 289. With all proper respect for the opinions of each of the thirty-two judges of which that court is composed, we think it much safer to rely upon the obvious import of the language of our code, liberally interpreted with a view to the objects intended to be attained, than upon the multitude of conflicting decisions to be found in the reports of the supreme efeurt of New York. But if we were bound to fol low a New York decision, we need not go beyond the volume to which we have been referred, to find authority for our own position, and a direct contradiction to the case above cited. In the case of Parker v. Jackson, 16 Barb. 33, decided at a general term of the supreme court, by four judges, it was held that all the parties severally liable upon the same instrument, might be prosecuted in the same action, and several judgments be entered; that such a proceeding was to all intents, under the code, a several action, giving the full right to separate defenses ; and that such an action might be maintained against the surviving debtor, and the representatives of a deceased co-debtor, without alleging the insolvency of the survivor. On the whole, we can find no error in the proceedings of the court below, and its judgment should be affirmed.  