The opinion of the court was delivered by
In .this case as in many others, which come before this court, the law is clear and well settled — so clear, indeed, that the case does not merit a serious examination. It is an appeal from a justice of the peace, to the court of Common Pleas; and which W3-S referred to arbitrators by consent of the parties, on the 24th of
The fourth and sixth exceptions may be considered together, being in effect the same. The question presented by them is, whether an award or verdict in assumpsit, or in an action on a parol contract against two or more, can be made for separate and distinct sums against each; and a judgment be entered thereon against all the defendants for the aggregate amount thus found?
When tire objection arising from mis-joinder or non-joinder of parties does not go in denial of the declaration, advantage can be taken of it only by a plea in abatement. 5 East. 307. 1 Saund. 291 b. n. 4. 1 Bos. & Pul. 67. But where the objection arising from the nonjoinder or misjoinder of the necessary parties goes in denial of the declaration, or of a material averment, advantage may be taken of it as well under the general issue as in abatement. 1 Stra. 220. 1 Bac. Ab. 293, title Plead. 293. Bul. 172. 2 T. Rep. 282 Thus if two persons be sued on a contract made by one only, advantage may be taken of this under the general issue. The objection arising from the mis-joinder denies the declaration and consequently supports the general issue. 2 N. Rep. 454. 2 Day. 272.
A mis-joinder of several causes of action is always fatal even after verdict. With respect to the joinder of actions, the rule is, that when the same plea may be pleaded, and the same judgment given, different counts may be joined; provided the parties arc the same, and are sued in the same capacity. The allegation and proof must agree. Therefore where a contract is laid in the declaration to have been made between A and B, a written instrument against C and B is not admissible. 2 Yeates, 95. 6 Bin. 121. Bul. Nisi Prius, 157. In this'case there is no declaration, no plea, and no issue. We are not left, however, entirely in the dark as to the nature and cause of action. It sufficiently appears from the statement of the accounts returned by the • arbitrators, that the action was founded on a parol contract express, or implied, and that it was for separate and distinct demands against each defend-
The same principle may bo found in many other decisions, and also recognized in the various treatises on the subject of pleading* It is equally applicable to this case and must govern us in the decision of it. The action was brought against the defendants jointly and the submission was also joint. Whereas the award finds separate sums against each defendant, and thus severs their joint liability. The judgment given-by the court upon the award thus made, was for the aggregate sum, and not for the amount due from each defendant. They probably knew, that in a case like the present there could not be two separate judgments; but in order to give effect to the award, have entered judgment against them for the whole amount, thereby creating a joint liability. If the judgment thus entered be valid, cither one of the defendants might eventually be compelled to pay the amount awarded against both* It is needless to remark further upon this point, as there can be no doubt that this exception taken to the award was fatal, and that no judgment Could be enterpd A full examination of the law on this subject, may be found in 1 Saund. Rep. 417-18.
Then as respects the fifth exception. -If the reference were under the act of 1705, which seems to have been the case, from the-
Judgment reversed.