Williams v. Royle , 1 Litt. 77 ( 1822 )

Opinion of the Court.

THIS was an action by petition, brought by Williams against Royle. The note on which the action is founded, purports to be signed by Royle and Co. and the petition is filed against Royle only. Royle demurred to the petition, and pleaded in abatement, that the note was executed by him jointly with Thomas Royle, deceased, who was the only other partner of the firm of Royle and Co. To this plea Williams demurred, and the circuit court overruled the demurrer to the plea, and sustained the demurrer to the petition, and gave judgment for Royle; from which Williams has appealed to this court.

1. It is very obvious, that the circuit court erred in sustaining the demurrer to the petition. The objection upon which we suppose that court sustained the demurrer, is, that the note purports to he given by others, as well as the defendant, Royle. But it is well settled, that where there are several obligors or contractors, and one issued alone, he cannot take advantage of the failure to join the others in the suit, otherwise than by a plea in abatement; for they may not, in fact, have executed the contract or obligation, or they may have died ; in either of which cases, the suit could be brought properly against the defendant only.

2. It is equally clear, that the circuit court erred in overruling the demurrer to the plea in abatement; for the plea not only alleges that the note was executed by another, as well as the defendant, but it also alleges that the other who executed the note, is dead; and thus manifestly shows that the suit was properly brought against the defendant only.

The judgment must be reversed with costs, and the cause remanded, for new proceedings to be had, not inconsistent with this opinion.