As a joint contractual right belongs to all of the obligees taken together, a declaration which showed the existence of such a right, at common law was open to demurrer, a motion in arrest of judgment or a writ of error, if any number less than all the obligees jointly entitled to the right were made plaintiffs.73 Such a declaration was none the less demurrable though it did not appear from it that the omitted party was alive. His death should have been alleged.74
The absence from the jurisdiction of one of the joint obligees was no excuse for not joining him as plaintiff since any of the obligees had implied authority to sue in the name of all, though bound to give bond to indemnify for costs any obligee who does not assent to the action.75 If the non-joinder
73Slingsby's Case, 5 Coke's Rep. 18 b (writ of error); Eccleston v. Clipsham, 1 Saund. 163 (arrest of judgment); Pullen p. Palmer, 5 Mod. 72; Scott v. Godwin, 1 B. ft P. 67; Petrie v. Bury, 3 B. ft C. 353; Lone v. Drinkwater, 1 C. M. & R. 599, s. c 3 Dowl. 223 (arrest of judgment); Foley v. Addenbrooke, 4 Q. B. 197; Berlin v. Sheffield Coal, I. ft S. Co., 124 Ala. 322, 324, 26 So. 933; Peck v. Lampkin (Ala.), 75 So. 530; Hays v. Lasater, 3 Ark. 665; Charles H. Thompson Co. v. Burns, 199 111. App. 418; Bell v. Layman, 1 T. B. Mon. 39, 40, 15 Am. Dec 83; Halsey v. Norton, 45 Miss. 703, 7 Am. Rep. 745; Smith v. Miller, 49 N. J. L. 521, 13 Atl. 39; Ehle v. Purdy, 6 Wend. 629; Sweigart v. Berk, 8 S. ft R, 308 (writ of error); May p. Slade, 24 Tex. 205; Galveston, H. & San Antonio R. R. Co. v. Le Gierse, 51 Tex. 189; Dawson p. George (Tex. Civ. App.), 193 S. W. 495.
74Y. B. 36 Hen. VI. f. 16, pl 11; Osborne v. Crosbern, 1 Sid. 238; Scott v. Godwin, 1 B. ft P. 67; Hays p. Lasater, 3 Ark. 565; Gilbert v. Allen, 57 Ind. 524, 526; Porter p. Fletcher, 25 Minn. 493; Ehle v. Purdy, 6 Wend. 629; Sullivan v. New York ft R. Cement Co., 119 N. Y. 348, 23 N. E. 820; Sweigart v. Berk, 8 S. ft R. 308, 311. 75Vernon v. Jefferys, 2 Stra, 1146; Petrie v. Bury, 3 B. ft C. 353; Ingham Lumber Co. v. Ingersoll Co., 93 Ark. 447, 125 S. W. 139; Darling v. Simpson, 15 Me. 175; Sweigart v. Berk, 8 Serg. ft R. 308. But in Williams v. Pacific Surety Co., 66 Or. 151,. 127 Pac. 145, the court held that under modem codes where the defendant is allowed to counterclaim, it was impossible to fix properly the amount of the bond which the obligee pressing the suit should bring, and, therefore, the old procedure should not be permitted, but that all difficulty was avoided by joining the absent or dissenting obligee as a defendant. This procedure was also held proper in W. D. Reeves Lumber Co. d. Davis, 124 Ark. 143, 187 S. W. 171; of one or more obligees did Dot appear from the declaration the objection might be taken by a traverse of the obligation alleged in the contract to exist in favor of the plaintiffs.76 An exception, however, existed in regard to executors or administrators, jointly entitled as such to enforce an obligation in favor of the deceased. The non-joinder of all the executors or administrators could be taken only by plea in abatement.77
Under modern statutory rules of pleading it is now held in many jurisdictions that a failure to demur to the declaration waives a non-joiner of plaintiffs apparent from the declaration.78 And now also in many jurisdictions objection to the non-joinder of a necessary joint plaintiff not apparent from the declaration, can be made only by an affirmative answer.79
Dawson ft. George (Tex. Civ. App.), 193 S. W. 495.
76 Leglise v. Champante, 2 Stra. 820; Graham v. Robertson, 2 T. R. 282; Hill v. Tucker, 1 Taunt. 7; Hatsall v. Griffith, 2 Cr. & M. 679; Chanter v. Leese, 4 M. & W. 295; Hopkinson v. Lee, 6 Q. B. 664; Newton v. Reardon,
2 Cranch C. C. 49; Jordan v. Wil -kins, 3 Wash. C. C. 110; Duval v. Mayson, 23 Ark. 30; Tufly v. Excelsior Works, 116 111. 544, 5 N. E. 83; Eveleth v. Sawyer, 90 Me. 227, 62 Atl. 639; Smith v. Crichton, 33 Md. 103; Wiggin v. Cumings, 8 Allen, 353; Blackburn v. Blackburn, 132 Mich. 525, 94 N. W. 24; Jensen v. Gamble, 191 Mich. 233, 157 N. W. 440; A. K. Mclnnis Lumber Co. v. Rather, 111 Mis. 55, 71 So. 264; Lemon v. Wheeler, 96 Mo. App. 051, 70 S. W. 924; Frumberg v. Haderlein, 167 Mo. App. 717, 151 S. W. 160; Pitkin v. Roby, 43 N. H. 138; Murray v. Pfeif-fer, 70 N. J. L. 768, 59 Atl 147; Ehle v. Purdy, 6 Wend. 629; Scott v. Brown,
3 Jones (N. C), 541, 07 Am. Dec. 256; Hoard v. Wilcox, 47 Pa. St. 51; Clapp v. Pawtucket Inst., 15 R. I. 489, 8 Atl. 697, 2 Am. St. Rep. 915; Gordon v. Goodwin, 2 N. & McC. 70, 10 Am.
Dec. 573; Hilliker v. Loop, 5 Vt. 116, 26 Am. Dec. 286.
771 Wins. Saund. 291 g; Hicks v. Branton, 21 Ark. 186, 189; Macon v. Davis, 27 Ga. 113; Lillard v. Lillard, 6 B. Mon. 340; Hunt ft, Kearney, 3 N. J. L. 529; Packer v. Willson, 15 Wend. 343, 346; Gordon p. Goodwin, 2 N. & McC. 70, 10 Am. Dec. 573.
78Clark v. Gremlin, 54 Ark. 525, 10 S. W. 475; Dunn v. Tozer, 10 Cal. 167; Bouton v. Or, 51 Iowa, 473, 1 N. W. 704; Parker v. Wiggins, 10 Kans. 420; Rittenhouse v. Clark, 110 Ky. 147, 61 S. W. 33; Combs v. Krish, 27 Ky. Law Rep. 154, 84 S. W. 562; Mason v. St. Paul F. & M. Ins. Co., 82 Minn. 336,83 Am. St. Rep. 433; Mechanics' Bank v. Gilpin, 105 Mo. 17, 16 8. W. 524; Castile v. Ford, 53 Neb. 507, 73 N. W. 945; Smith v. Miller, 49 N. J. L. 521,13 Atl. 39; Potter v. Ellice, 48 N. Y. 321; Johnson v. Gooch, 114 N. C. 62, 19 S. E. 62; Ross v. Page, 11 N. Dak. 458, 92 N. W. 822; Wyman v. Herard, 9 Okla. 35, 59 Pac. 1009; Spencer v. Van Cott, 2 Utah, 337; Hannegan v. Roth, 12 Wash. 695, 44 Pac. 256; Dreutzer v. Lawrence, 58 Wis. 594, 17 N. W. 423.
79 Berlin v. Sheffield Coal, I. & S.
Sec. 827. Incidents of procedure in the enforcement of contractual duties against joint obligors. As joint obligors were supposed to contract as one, it was fundamental in the common law that all of the joint obligors must be joined as defendants unless one or more of them had died, in which case, by the rule of survivorship the remaining obligors had imposed upon them the whole liability. A further exception has been universally introduced as to any one or more of the obligors who is beyond the jurisdiction of the court.80 But at common law absence of a debtor from the jurisdiction gave ground for no exception.81 If, therefore, a plaintiff's declaration disclosed the non-joinder as a defendant of a living and joint obligor in the contract sued upon, the declaration was bad on general demurrer, or motion in arrest of judgment.82 But even when rules of pleading were stricter than they are at the present time the declaration was not demurrable unless it not only showed that a joint contractor had not been made a party defendant, but also that he was alive.83