Wm. L. Hall v. T. J. Allcorn, 1 Dallam 433

HEMPHILL, Chief Justice. This was an action brought by the appellee on a note of hand of which the following is a copy: “$2260. On or before the twenty-sixth of February next, 1838, we promise to pay Thomas J. Allcorn, administrator of the succession of Elijah Caple, deceased, or bearer, two thousand two hundred and sixty dollars, in good current bank notes, being the amount of property purchased by Andrew Robinson, at the sale of the effects of the said estate, on the 26th of August, in conformity with a decree of the honorable judge of probate in and for the county of Harrisburg. (Signed) A. Robinson, Jr., Wm.

Barrett, T. J. Hall, Wm. Sims Hall. Live Oak District, September 6, 1837.” Judgment was rendered against the defendants, “and each of them, jointly and severally, for the sum of two thousand two hundred and sixty dollars,” or the entire amount of the note sued on. An appeal has been taken therefrom, and we are asked to reverse the same on the ground that the note on which the suit is brought is an obligation by which each one who bound himself was bound only for his equal portion thereof and the judgment is rendered against them, jointly and severally, each one for the whole.

At the period of the execution of this note the laws of Spain were the common law of this country and afforded the rule by which this contract must be regulated. The question then arises whether this would be considered under that system of laws as a joint obligation or one in solido.

Por all the purposes of this cause it will be sufficient to define a joint obligation (under the laws which formerly governed the country) to be one where several persons join in one contract to do the same thing; and an obligation in solido to be one where several persons obligate themselves by the term in solido, or other expressions which clearly show that they intend that each one shall be bound to perform the whole of the obligation. The laws of Louisiana are analogous to those of our own system on this subject, and the decisions of their tribunals may justly be regarded as entitled to high consideration.

It is an established principle in both systems that solidarity is never to be presumed. See 12 Martin, 316. And it is equally well established that the words in a note or obligation, “we promise,” make a joint obligation and not one in solido. See Mayor and Alderman v. Ripley, 5 La., 122; 3 La., 596, 597.

The rule oí law in relation to obligations of this description is expressed by a Spanish authority in the following terms: “Where two persons are bound simply or severally (simplemente), each is considered only bound for the half, unless it shall be expressed that they have bound themselves in solidum, and each separately ; for then each may be sued for the whole. See 1 White’s Recopila-ción, p. 152. On consideration of the same principles of law, and the authorities referred to, it is manifest that the judgment of the court below is erroneous.

Instead of being in solido, or against each of the defendants separately for the whole amount of the note, it should have been entered for his respective share thereof.

It is therefore ordered and decreed that the judgment of the court below be reversed and set aside; and this court proceeding to render the judgment which should have been entered by the court below, it is ordered and decreed by this court that the plaintiff recover of each of the said defendants his respective and equal share of the said obligation, with interest on the said portion as the law directs, and the appellant recover his costs expended in this court. Reversed and rendered.