By the Court,
The declaration charges a joint indebtedness against the defendant as survivor of A. Petrie, deceased, \m a promissory note; and to maintain the action, it must be proved as laid. 2 T. R. 478. 1 Chilly’s Pl. 31. 1 East, 52.
It was not necessary to have noticed the decease of the joint debtor in the declaration, though it is more formal to do so, 1 Chitty, 28. 1 Johns. Cas. 405; 1 Barn, & Ald. 29 ; 4 id. 452 ; the evidence, however, should be the same to author
The principle of the case of Bosanquet et alii v. Wray et alii, 6 Taunt. 597, may be referred to on this point. It was there decided that the partners in one house could not sue at law those of another, where one of the house of the plaintiffs was also a member of the other, for partnership transactions ; and that it made no difference whether the action was brought before or after the death of the common partner. The ground taken was that no legal contract could subsist between him and his partners, on one side, and himself and those connected with him on the other side: it was available only in equity, and as the principle went to the root of the contract, the same objection to the plaintiff’s recovery continued after his decease. This case shews that the fact of the remedy surviving to and against the different parties did not alter the nature of the contract, nor vary the principles governing it. By the decease of one of the partners it did not become, by operation of law, the contract of the survivors. If it had, there would have been no objection to the suit at law. Now, applying this principle to the present case, the plaintiff, to sustain a recovery, must establish the liability of the deceased joint debtor, as
The only pretence against the conclusiveness of this view of the defence is, that the defendant-was privy to the negotiation of the note to Feeter; admitted it to be due, and promised to pay it. Whether this promise, under the circumstances disclosed in the case, should bind him individually, or not, it is unimportant to determine. It is clear, it cannot revive the note, and give vitality to it, as respects the deceased joint debtor. The defendant’s promise might take the case out of the statute of limitations, but it cannot create a new debt against the deceased joint debtor. 3 Johns. R. 536. 6 id. 269. The defence, as to the co-debtor, is complete, he having paid the note, which has since, and after due, passed to the plaintiff; and that is sufficient also for the defendant upon the record, as a joint indebtedness is thereby disproved. 1 Chitty, 32, and cases cited.