announced the opinion of the Court:
Upon consideration of the question presented by the case stated, and consulting the authorities, we are satisfied that the scire facias in this case was properly issued. It is in accordance' with the opinion of Lord Holt in the case of Parton v. Hale, 2 Salk., 598, cited by plaintiff’s counsel, and is also warranted- by the form suggested by him, and as adapted into Tidd’s Appendix of Forms.
The reason why it is not proper to join the administrator of the deceased co-defendant in a judgment in an execution or writ of scire facias upon it, is this—that, at law, in the case of a joint contract, upon the death of a contractor his executor or administrator is discharged from liability, to be sued upon it, and the survivor or survivors can alone be sued; and if all of them be dead it is only the executor, or administrator of the last survivor who can be charged. 2 Wm. on Ex., 1239, citing Goodson v. Good, 2 Marsh., 300, and 6 Taunt. 594, S. C.
If the contract be several, or joint and several, the executor or administrator of the deceased contractor may be sued at law upon the contract in a separate action; but he cannot be sued jointly with the survivor, because one is to be charged de bonis teétatoris, and the other de bonis propriis, Id., 1249 citing Freem, 248; 2 Lev. 228.
It is not necessary to pass upon the effect of our statute (Rev. Code, Chap., 63, Sec. 9,) with respect to obligations or written contracts, which declares that they shall be joint and several unless *507otherwise expressed; for the objection with respect to joinder would still be the same as that last mentioned.
Judgment for the plaintiff.