The opinion of the court was delivered by
Bennett, J.This case comes before as upon a demurrer to the plaintiffs’ declaration. The law is well settled, that, if one obligor be sued alone upon a joint bond, and it appear from the declaration that the other obligor is still living, the declaration is ill upon demurrer. It would seem, however, that, in such case, unless it appears from the declaration, or the subsequent pleadings of the plaintiff, that the other obligor is still living, the objection cannot be reached by a demurrer, a motion in arrest, or a writ of error. It is proper matter to be pleaded in abatement. See Whelpdale’s Case, 5 Coke’s Rep. 119; Cabell v. Vaughan, 1 Saund. 291, and the able note of Serjeant Williams, No. 4.
But the doctrine, which has been applied to joint obligations, doe's not seem fully to have been extended to cases of joint recognizances, judgments, and other matters of record. In these cases it has been held, that, if it appear from the declaration, or other pleadings of the plaintiff, that there is another joint debtor, who is not sued, the objection may be taken advantage of by a demurrer, or upon a motion in arrest of judgment, although it is not averred that he is still living. This distinction has been fully acted upon in the English Courts, and has been adopted by the' Supreme Court of the United States; — and, if established by authority, it is not for us to say that there is no good sense in the distinction, which requires *226the party, when he declares upon a matter of record, to show some good reason, why he does not join others, who, from the declaration, are jointly liable. He must set forth the cause of the variance from the record. See Blackwell v. Ashton, Aleyn 21; Rex v. Young, 2 Anstr. Rep. 448; 3 Anstr. Rep. 811; Gilman v. Rives, 10 Peter’s Rep. 298.
There seems, also, to be another fatal objection to this declaration, in setting forth the recognizance. The allegation in the declaration is, that Hiel Heath, as principal, and James Heath, as surety, acknowledged themselves bound to the plaintiff in a recognizance of fifty dollars, conditioned, &c. There is no averment before whom the recognizance was entered into. Non constat, but that it might have been entered into before some other magistrate, and not before the one who tried the cause; and in that event it would not be of binding force.
The result is, the declaration must be held insufficient, and the judgment of the county court is affirmed.