Ebenezer Broughton, Jr. v. John Fuller and William Fuller, Jr., 9 Vt. 373

The opinion of the court was delivered by Redeield, J. At common law, the plaintiff, in an action ex contractu, must make his case against all the defendants sued, or he could not recover against any. But, by a recent statute of this State, the plaintiff, even in actions ex contractu,, may recover against any number of defendants, less than the whole number, and the others, recover their costs. So that, now, the joining too many defendants, is no ground of abatement even, much less of non-suit or error. And by the same statute, if too few defendants be joined, the others may be cited.

This is engrafting ob the system of law a principle of the proceedings in chancery, which may be found to work well in practice, or it maybe found too cumbersome and complex, to consist with the machinery of special pleading, and trial by jury. This statute has been long enough in force to determine its utility.

Whenever any part of our proceedings in courts are found manifestly defective, it is the part of sound policy to reform them ; but when they have been long established, and operate in any tolerable degree-, it is sometimes better to “ bear the ills we have, than fly to others that we know not of." It is contended that this case, being a suit upon a written contract, is not within the purview of the statute. And the distinction is put upon the ground, that here is a variance between the declaration and the próof.

But this is always the case, where the Proof shows the contract made by a less, or a greater number, than the declaration , and it is upon this ground, that, at common law, the plaintiff could not recover; and it is to cure this variance the statute was enacted. The other points in the case seem to resolve themselves into much the same principles with those already adverted to. It is true, that the insertion of the word “ Junior,” without the consent of the signers, would avoid the note, but if made by their consent, it would be virtually making a-new note, and antedating it.

If made by the consent of one, it would be binding-upon him, but not upon the other. The date of the note not being altered is not material. A note made one day may be dated another, and this is well enough, unless it is done to cover usury. In declaring upon a note without date, time is no more material than it is in a-declaration upon a merely verbal contract. And when the note is dated, time is not material, except as a part of the description of the note.

If the declaration state the note was executed on a certain day, different from that, on which the note bore date, there is no fatal variance; but if the declaration allege that the date of the note was different, from what in point of fact it was, the variance is fatal, for the date is part of the description of the note.

Hence, although the note now in suit is not the note of one defendant, and, as the note of the other defendant, was executed at the time of the alteration, (but the date remained the same,) and although the plaintiff might truly allege the time of execution, yet, if the date be set forth, it must be truly described. So the plaintiff has done. The judgment of the county court is, therefore, affirmed.