Banks v. Bosler & Co.

7 Ky. 573

Opinion

OPINION of the Court, by

Ch. J. Boyi.e.

As it appears that the action in this case was brought in the name of one only of a firm or company, it is clear that the court below ought to have sustained the defendants’ demurrer and given judgment abating the writ: for although it is held where an action is brought on a joint contract or agreement against one only of several contracting parties, that advantage can be taken of it Suly by plea in abatement, yet it is well settled that in all cases of contracts, if it appear on the face of the pleadings that there are others who ought, but who have not joined in bringing the action, it is fatal on demurrer, or on motion in arrest of judgment, or on a writ of error. — -1 Cbitty’s Plead. 7 — 1 Saund. 153, note 1 — 3 Cain’s Rep. 170.

Judgment reversed, cause remanded, &c.