Wallace v. Hanley , 33 Ky. 72 ( 1835 )

Chief Justice Robertson

delivered the Opinion of the Court.

The question to be determined in this case, is whether a surviving obligee may maintain an action of debt, for himself and the representatives of his deceased co-obligees, on a penal bond, with a condition several in its legal effect. — And we think he may.

In an action of covenant, to recover damages for breach of the condition, the several covenantees could not have joined, nor could the survivor have sued for breaches affecting the deceased covenantees only.

But the penalty being entire, and indivisible, and enuring jointly to all the obligees, as one debt — only one action of debt can be maintained upon the bond as a penal obligation.

Wherefore, the declaration being substantially good in other respects, the Circuit Court erred in sustaining the demui’rer to it, even though some of the breaches may be defectively assigned.

Judgment therefore revei’sed, and cause remanded, with instructions to overrule the demurrer.