Harwood v. Roberts

Mellen C. J.

delivered the opinion of the Court.

It appears by inspection of the record, that the note declared on was signed by four persons ; the -action is against two of them only. It is a familiar principle that where a promissory note or bond is signed by three or more persons, who thereby contract jointly and severally, the creditor may sue all in one action, or may sue each one severally; but he cannot sue two and omit the others ; for in such case they are sued neither jointly, nor severally, as they promised. Had the defendants pleaded the misjoinder, in the original action, in abatement, ft is admitted that the plea would have been fatal to the action ; but as this was not done, the counsel contends that it is now too late for the plaintiffs in error make the objection. This would certainly be true, if the original plaintjff had not in his declaration set forth the fact that the then defendants, together with two other persons, made the note on which the suit is founded. This being the case, it was not necessary to plead it in abatement; such plea would only have informed the court of a fact which the plaintiff himself had spread upon the record. This is a plain principled 5 Burr. 2614. Homer v. Moor, there cited. 1 Saund. 291. b. n. 4. Yelv. 27. n. 1, and cases there collected. The principal question seems to be whether, inasmuch as the plaintiff is perfectly silent in his declaration as to, the fact of the life or death of the two promis-sors, not sued, the court are to presume them to be living, or to be dead. It is settled by many cases that when a defendant pleads in abatement that another person was a co-promissor with the defendant, he must go on and aver that he was living when the action was commenced, and ought to have been joined in the suit; — see 1 Saund. 291. b. note 2. Yelv. 27. n. 1; — for pleas in abatement are not to be favored, -but construed strictly., As to the form of declaring in such a case as the present, the authorities seem somewhat at variance. 1 Saund. 291. note 2. But in Blackwell v. Ashton Styl, 50, it was decided that if the joint obligor be dead, the regular and proper manner of declaring is to aver his death. So in King v. Young & al. 2 Anst. 448. where there was no averment of the death of the two who were not sued, the declaration was held bad on demurrer. So in South v. Tanner & al. 2. Taunt. 254. Letwyche & al. v. Berkley 1. Hen. & Munf. 61. Newell v. Wood 1. Munf. 555. We thus perceive that the weight of authority is decidedly in favor of the plaintiffs in error ; and our opinion is, that as the original plaintiff stated in his declaration, that two persons, besides the defendants, were co-promissors in the note declared on, the declaration is fatally bad, for want of an averment that those persons were dead at the time of the commencement of the action. There seems to be no more reason for obliging a defendant, in a plea in abatement,, after averring that there was a co-promissor who is not suedj to go on and aver his life, than there is for obliging a plaintiff who discloses in his declaration that there was a co-promissor who is not sued, to go on and aver his death. The averment of life is essential to the sufficiency of the plea ; and the averment of death to the sufficiency of the declaration. Judgment reversed.