Roberts v. McLean , 16 Vt. 608 ( 1844 )

The opinion of the court was delivered by

Redfield, J.

It is believed there is not much ground of controversy in regard to what the English -law -is upon this subject. It .is not contended in argument that this plea, in regard to its merits, is not well founded, if we regard the rule of the English law upon the subject. But it is said, that, having qualified the English rule upon this subject in regard to infant joint contractors, (Allen v. Butler 9 Vt. 122,) we should, also, as to certificated bankrupts, or those ready to be certificated, as is the fact in regard to one of the joint contractors in the present case, as appears from the declaration.

There certainly is convenience in the American practice in regard to infant joint contractors, who are joined in the suit, that they should be let out without abating the entire suit; although I take it the English law upon this subject is otherwise, and always has been. But in regard to bankrupts the English rule always has been, that they might be let out without abating the suit, and that they must be joined, — but that infants, joint contractors with adults, could not be joined. The reason for this distinction is, that the infant was never bound by the contract, while the bankrupt was; and in the one case the contract was a joint one by the bankrupt and the solvent contractor, and in the other case it was but the contract of the adult alone. 1 Chit. Pl. 31-35. Noke et al. v. Ingham, 1 Wils. 89.

But, on consideration, we are not prepared to say there is any sufficient ground to qualify the English rule in regard to joint contractors, who have since obtained their discharge from the contract on the ground of bankruptcy. That rule requires the contract to be declared upon as it was made; and the defence of bankruptcy is merely personal, and, if not pleaded, is no ground of sustaining a writ of error, even if it appeared upon the face of the proceedings. To allow the plaintiff, then, to omit one so circumstanced would be to permit him to elect the course which the defendant should pursue in his defence.

We do not think the objections to the form of the defendant’s plea well founded.

1. We do not think it necessary to alledge, in a plea of this kind, that the other joint contractors were of full age at the time of entering into the contract, any more than to negative any, or, indeed, all, other supposable disabilities, — as, for instance, coverture, insanity, or being under duress.

3. We think it sufficiently alledged that the other joint contractors did reside within this state at the time of sueing out the process. We have only to refer the word “did” to the only thing.to which it could refer, and not make most absurd nonsense, and the language is sufficiently explicit. But it is well settled, I apprehend, that, if it appear upon the face of the declaration, — as in the present case, — or upon any of the pleadings, that there are other joint contractors still living, who are not joined, the defendant may demur, move in arrest of judgment, or sustain a writ of error. 1 Chit. Pl. 32. 1 Saund. R. 291 b. Ib. 154 a. Scott v. Godwin, 1 B. & P. 67, 73-74. Gould’s Pl. 280, § 116.

Judgment affirmed.