Hammond v. Walker , 1 S.C. 109 ( 1869 )

The opinion of the Court was delivered by

Moses, C. J.

The action was against the defendants, who, with another, were the drawers of a joint and several note to the testator of the plaintiffs.

The pleas were, non est factum, and failure of consideration.

On the trial, a non-suit was granted for the non-joinder of the other drawer.

The motion is, to set aside the non-suit, on the ground that the objection should have been made by plea in abatement.

The exception is well taken, as a reference to the authorities will clearly show. When the contract is- several, as well as joint, the plaintiff is at liberty to proceed against the parties jointly, or each separately, though their interest be joint. But if there be more than two parties to a joint and several contract, as where three obligors are jointly and severally bound, the plaintiff must either sue them all jointty, or each of them separately; though, if two only be improperly sued, the objection should be taken by plea in abatement, or by writ of error, if the defect appear on record, and it is not a ground of non-suit. — 1 Chit. PL, 43, 46.

The practice in this State has conformed to this rule, and there has been no variance from it. The objection must be made by plea in abatement, and cannot prevail by way of non-suit. — Derrill vs. Charleston Steamboat Company, MS., Nov., 1826; Valentine vs. Gerard, 2 Rich., 9; Exum vs. Davis, 10 Rich., 357.

The motion to set aside the non-suit is granted.

Willard, A. J., concurred.