Opinion
1812.
If a joint bond executed by three by taken up by two of them, they can not sustain a joint action at law against the other for his proportion, but each must sue separately.
Cooke, for the appellants; Minor, for the appellee.
This was an action of assumpsit, brought by the appellants against the appellee. The declaration contains two counts; one for money had and received, and the other for money laid out and expended. The case was as follows: —
The appellants and appellee jointly purchased of Robert Weakley, for ten hundred and sixty dollars, six hundred and forty acres of land, for the payment of which sum of money they executed their joint obligation to Weakley. The appellants having discharged this obligation commenced a joint action against the appellee to recover his proportion. On the trial of the cause in the Circuit Court, the appellee objected that a joint action could not be maintained under these circumstances. The Circuit Court being of that opinion the appellants took a bill of exceptions, and now prosecute this appeal to reverse the judgment.
This action arises from an implied assumpsit; and as it respects the responsibility of the defendant, can not be extended beyond one-third of the debts and costs. On the principle of retributive justice, neither of the appellants can claim more of the appellee, than in a compound ratio of the sum paid to Weakley individually, which is the one-third of the joint debt of a thousand and sixty dollars; or, in other words, according to a common position, as the whole debt is to one-third, so would the sum paid by each appellant individually be to the sums to be paid by them respectively. The recovery in such a case must be founded on equitable principles; and on an implied assumpsit the defendant could only be rendered accountable conformably to the foregoing rule, to each appellant, in proportion to the sums actually and respectively paid to Weakley.
This case falls expressly within the rule laid down in 1 Esp. N. P. 33; nor does the case stated by the appellants' counsel as being reported in 5th East, 225, impugn this rule. Let the judgment therefore be affirmed.