The. Opinion of the Court was delivered by
Treat, J.*The record discloses this state of case. Evin Shelby and Emanuel Orr, by their promissory note, dated the 20th of October, 1838, jointly and severally promised to pay Joseph Thompson $14-50 in twelve months. A suit was docketed on this note, on the 13th of November, 1845, before a justice of the peace, in the name of “Joseph Thompson, for the use of William Curtis, v. Evin Shelby and others;” and on the same day, on the appearance and confession of Shelby, the justice entered a judgment against him for $19-50, the amount then due on the note. On the 27th of April, 1846, the justice issued process reciting the previous proceedings, and requiring Orr to show cause why judgment should not be rendered against him. He appeared and pleaded in abatement, the death of Thompson prior to the commencement of the suit; but the justice overruled the defence, and rendered a separate judgment against Orr for $20-25. He appealed to the Circuit Court, and there pleaded the same matter in abatement; but the Court sustained a demurrer to the plea, and affirmed the judgment of the justice.
The process issued by the justice was probably intended by him as a scire facias to bring in Orr, and make him a party to the judgment against Shelby. As such, it was unauthorized. It cannot be regarded as a continuation of the first suit, for that was at an end when the judgment was entered against Shelby; but must be treated as a new and independent action against Orr. As such, it may be sustained, unless the matter set up in abatemdnt will defeat it. The previous proceedings constituted no bar to a subsequent suit to enforce the liability of Orr, as one of the makers of a joint and several promissory note. The action was in the name of the payee as the legal plaintiff. The plea alleged that he died previous to the institution of the suit. If true, the legal interest was in his personal representative, and the suit should have been brought in his name. The fact that Curtis was the beneficial holder of the note, did not dispense with the necessity of suing in the name of the administrator. The Circuit Court erred in sustaining the demurrer to the plea. Its judgment will be reversed with costs, and the cause remanded for further proceedings.
Judgment reversed.
Lockwood, J. did not sit in this case.