Sec 833

The omission of a joint promisor, as a defendant, can at common law be taken advantage of by plea in abatement.5 Should the defendant go to trial on the merits, he cannot defend on the ground that others, jointly bound with himself, were not sued.6 Thus, where on a bill of exchange drawn upon and accepted by four persons, only three were sued, it was held that the suit could be maintained, although the declaration averred the bill to be drawn upon and accepted only by those who were sued.7 But a joint subsisting liability of all parties charged in the pleading must be shown at common law, or there can be no recovery.1 Now, however, under the enlarged liberty of amendment introduced by recent legislation, variances of this class can be relieved by amendment of declaration or writ, and the questions just noticed are no longer liable to occur.2

Omission of joint promisor only matter for plea in abatement.

1 Leake, 3d ed. 451; 1 Story, Eq. Jnr. sec 162 et seq.; Beresford V. Browning, L. R. 1 C. D. 30; Thorpe V. Jackson, 2 Y. & C. 553; see Harrison V. Barton, 30 L. J. Ch. 213; Hunt V. Rousmanier, 8 Wheat. 211; Yorks V. Peck, 14 Barb. 644.

2 See Bachelder V. Fiske, 17 Mass. 464; Curtis V. Mansfield, 11 Cush. 152; Taylor V. Taylor, 5 Humph. 110; Davis V. Wilkinson, 1 Hayw. 334.

3 Lang V. Keppele, 1 Binn. 123.

4 Infra, sec 835; supra, sec 765.

5 Ch. on PL 16th Am. ed. 53; Rice V. Shute, 1 Smith, L. C. 7th Am. ed. 870; Cabell V. Vaughan, 1 Wms. Saund. 291; Winslow V. Merrill, 2 Fairf. 127; Nash V. Skinner, 12 Vt. 219; Ziele V. Campbell, 2 John. Ca. 382; Seymour V. Minturn, 17 Johns. 169; Williams V. Allen, 7 Cow. 316; Burgess V. Abbott, 6 Hill, 135; Mer-shon V. Hobensack, 2 Zab. 373; Witmer V. Schlatter, 15 S. & R. 150;.

2 Rawle, 359; Horton V. Cook, 2 Watts, 40; Potter V. McCoy, 26 Penn. St. 458; Means V. Milliken, 33 Penn. St. 517; Bledsoe V. Irvin, 35 Ind. 293; Moore V. Russell, 2 Bibb, 442; Henderson V. Hammond, 19 Ala. 340. See, also, Barry V. Foyles, 1 Pet. 317, overruling on this point, Jordon V. Wil-kins, 3 Wash. C. C. 110.

6 Dicey, ut supra, 231: Richards V. Heather, 1 B. & Ald. 35; Cross V. Williams, 7 H. & N. 675; King V. Hoare, 13 M. & W. 505: Barry V. Foyles, 1 Peters, 317; Powers V. Spear,.

3 N. H. 35; Hicks V. Cram, 17 Vt. 449; Elder V. Thompson, 13 Gray. 91. That a variance may be taken advantage of on special demurrer, see Burgess V. Abbott, 1 Hill, N. Y. 135, where it was held that the objection could not be taken advantage of on general demurrer.

7 Mountstephen V. Brooks, 1 B. &.

Ald. 224.

Sec 834

If too many persons be made joint defendants, and this fact appear on the pleadings, this, at common law, is fatal on demurrer, or arrest of judgment, or writ of error.3 The recovery, when a joint debt is averred, must be against all or none, unless one or more of the defendants is removed from the record by setting up a purely individual defence, such as infancy or bankruptcy.4

Misjoinder if unamended is fatal.

1 Tuttle V. Cooper, 10 Pick. 281; Walcott V. Canfield, 3 Conn. 194; Livingston V. Tremper, 11 Johns. 101. In Gilman V. Rives, 10 Pet. 298, it was held that in suits on recognizances, and obligations of record, where one is sued, and the declaration shows that another is justly bound, this is fatal on demurrer or arrest, if the plaintiff does not aver that the other party is dead; though a distinction is suggested between records and deeds. - In Virginia, this rule has been applied to suits on bonds; Newell V. Wood, 1 Munf. 555; Newman V. Graham, 3 Munf. 189; and in Maine, to suits on promissory notes. Harwood V. Roberts,.

5 Greenl. 441; S. P., Needham V. Heath, 17 Vt. 224; see McGregor V. Balch, 17 Vt. 563; see, however, contra, Neally V. Moulton, 12 N. H. 485; Harrow V. Dugan, 6 Dana, 341; Mc-Creery V. Davis, 9 B. Mon. 128. In Lillard V. Bank, 3 How. Mis. 78, it was said that if it appear from the record that the other contracting party was alive, the defendant may demur, but not otherwise; see Geddis V. Hawk, 10 S.

& R. 33, and discussion in 1 Smith, L. C. 7th Am. ed. 874; in which work (p. 875), after a careful survey of older American cases, it is said: "These opinions are so discordant and uncertain, that they cannot be considered as overthrowing a principle so clearly founded in reason, as that where a joint liability appears on the declaration in a suit against one, the non-joinder is fatal on general demurrer or in arrest of judgment. There are some cases in which the non-joinder of a joint contractor cannot be taken advantage of in any way whatever. Thus, though it seems to be assumed in the principal case (Rice V. Shute), that the non-joinder of a secret partner might be ground of a plea in abatement; and was, indeed, afterwards so decided in Dubois V. Ludert. 5 Taunt. 609; yet the case was soon disregarded in practice, and at last solemnly overruled: Mullet V. Hook, 1 M. & Mal. 88; De Mautort V. Saunders, 1 B. & Ad. 398; and, therefore, if issue be joined upon a plea in abatement of non-joinder, the jury are directed to consider with whom had the plaintiff' reason to believe that he contracted."

2 Leake, 2d ed. 450.

3 Ch. on Pl. 16th Am. ed. 51; Shir-reff V. Wilks, 1 East, 52; Max V. Roberts, 12 East, 94; Cooper V. White-house, 6 C. & P. 545; Whiting V. Cook, 8 Allen, 63.

4 Peebles V. Rand, 43 N. H. 337; Tuttle V. Cooper, 10 Pick. 281; Wal-.