Constable v. Clovery , 1 N.C. 49 ( 1793 )

Doderidge, J. and Jones, J.

It is according to the covenant, and it is well—

4. The covenant is by three jointly and severally, that they pay, and the breach is assigned that the defendant did not pay; he ought to have gone farther and say, nor any of the others.

Curia. The distinction is, that when the action is brought against all, the non payment of all shall be alledged. But where the suit is against one only, it is sufficient to say, that he did not pay. And if any one has paid, it is proper for the defendant to plead it. It is the same when two are bound jointly and severally; in a suit against one, it is sufficient to say he did not pay otherwise when against both.

And Davenport (the King’s attorney) took another exception. There the declaration is, that it was covenanted inter partes predictus, per indenturam fact, tali die: but he does not say that it was covenanted, *agreed, or witnessed that he would sail with the first wind.

And, after argument, it was adjudged for the plaintiff. Antea, p. 12. Poph. 161. Bendl. 146. Noy 75. Palm. 397.