Granger, J.
The plaintiff, as assignee of one Andrews, brought the present action of assumpsit against the defendant, Curtis, declaring “ that the defendant and one William C. Williams were, on the first day of April, 1873, partners in business under the firm name of Williams & Curtis, and as such were justly indebted to the said Andrews in the sum of six hundred dollars for goods theretofore sold by him to the firm, and that afterwards, and before the present suit was brought, the said Williams was duly declared a bankrupt under and in accordance with the bankrupt laws of the United States, and complied with all the requirements of said laws, and was duly and legally discharged from all his debts, and especially from the debt hereinbefore described, and that the plaintiff has now, by reason of said discharge, no legal right of action against said Williams, and can sustain a suit for said debt against said Curtis only.” The common counts are then added for goods sold to the defendant and for an indebtedness upon an account stated, each to the amount of $600, and the declaration closes with the ordinary averment of a promise of the defendant, in consideration of the indebtednesses stated, to pay the several sums mentioned when thereto requested, and his neglect, on demand made, to pay the same.
The defendant pleaded the general issue, with notice of sundry matters not affecting the questions now made, and the court, to whom the case was tried, found the issue for the plaintiff, and adjudged that ho recover $634.42 damages and his costs. The defendant upon this filed a motion in arrest of judgment, on the ground of the insufficiency of the declaration, assigning specially—1. That the declaration showed upon its face that William C. Williams was a co-promisor with the defendant, and that he should therefore have been joined as a co-defendant in the suit.—2. That the declaration did not recite the alleged discharge of Williams, nor show what court, or that any court of competent jurisdiction, had granted the discharge. The court overruled this motion, and the defendant has brought the record before us by a motion in error.
[38]*38■ There being no finding of facts in the case it is impossible for us to see from the record that the court found the issue for the plaintiff on any particular count of the declaration. It may have been upon the count for goods sold to the defendant, or upon that for an indebtedness upon an account stated between the plaintiff and defendant, in either of which cases it is yery clear that the bankrupt should not have been joined as a co-defendant. The defendant, if ho had desired to freo the case -from the embarrassment of these counts, should have required the plaintiff to prove his allegations under, them, and on their not being proved should have asked that the issue upon them he found in his favor.
And even without these counts, the declaration would stand as a statement of an indebtedness original^ duo from the defendant and Williams as partners, and that Williams had been discharged in bankruptcy, and that in consideration of this indebtedness the defendant personally had promised to pay the sum demanded. If the court upon such a declaration had found the issue for the plaintiff, it would be a finding that the defendant actually made such a promise, and if he made it there was certainly a sufficient consideration for it. If he had given his note upon such- a consideration it would hardly be contended that the note was not a valid one. It would have been easy to avoid this difficulty. There being no implied promise growing out of that state of facts the defendant should have called on the court to find the issue in his favor unless the plaintiff should prove an express promise. We can not know that the plaintiff intended to allege merely an implied promise. An express promise is alleged precisely like an implied one, and unless the fact is brought upon the record by the pleadings or the finding,-the court must always treat it as if it were an express promise.
We have no doubt however, and it seems to have been taken for granted in the argument, that the promise here alleged was intended to he an implied promise only, and we shall be evading the real question between the parties unless we so consider it.
In this view the case presents to us three questions.
[39]*391 Was it necessary that Williams the bankrupt should have been made a party defendant ?
2. If it was necessary, can the question be made by a motion in arrest, the matter not having been pleaded in abatement ?
8. If it was not necessary, is not the declaration still insufficient in not reciting the discharge and alleging more fully the facts going to show the legality of the discharge ?
As the first of these questions is the most important we will leave that for final consideration, disposing of the others first.
And first, as to the adequacy of a motion in arrest. While it is a general rule that a non-joinder of a defendant must be pleaded in abatement, if advantage is to be taken of it at all, yet it seems to be laid down in the books that where the necessity of making the omitted party a defendant already appears on the pleadings the defendant is not compelled to plead the non-joinder in abatement, but may raise the question for the first time by a motion in arrest. The rule on this point is perhaps nowhere better stated than by Swift in his ‘Digest, Yol. I., p. 184, where, after giving the general rule that if only a part of joint contractors are sued, they must plead the matter in abatement and show that the other joint contractors not sued are living, he adds—“unless it should appear from the face of the declaration or any other pleading of the plaintiff, that another party executed the contract with the defendant, who is still living. If both these facts are admitted by the plaintiff the court will arrest the judgment, because the plaintiff himself shows that another ought to have been joined, and it would be absurd to compel the defendant to plead facts which already have been admitted.” If then we are to regard the matter that would have constituted the plea in abatement if one had been filed, as already set up in the declaration, we should feel compelled to hold, in accordance with the rule, that the defendant need not aver and prove it, but could take advantage of the plaintiff’s own admission, and make it the ground of a motion in arrest of judgment.
[40]*40But it is very clear that, to open this door for the defendant, the plaintiff must have alleged, and thus admitted, all that it would have been necessary for the defendant to have alleged in an ordinary plea in abatement. The rule that allows the defendant, after having gone to trial upon the. merits, without hinting his intention to raise a question as to the necessity of making other parties defendants, and thus taking his chance for a verdict, and then, if he fails of that, falling back upon the liability of the writ to abatement—a question in its nature a preliminary one, and not regarded with favor even when formally raised by a plea in abatement— is one that the court will apply with reluctance, and will not extend beyond the strictest limits to which, without repudiating the rule, it can be confined. Applying the rule in this spirit we can not overlook the fact that the plaintiff in his declaration has not averred, and so has not admitted, that Williams the bankrupt co-debtor is still living.
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Granger, J.
The plaintiff, as assignee of one Andrews, brought the present action of assumpsit against the defendant, Curtis, declaring “ that the defendant and one William C. Williams were, on the first day of April, 1873, partners in business under the firm name of Williams & Curtis, and as such were justly indebted to the said Andrews in the sum of six hundred dollars for goods theretofore sold by him to the firm, and that afterwards, and before the present suit was brought, the said Williams was duly declared a bankrupt under and in accordance with the bankrupt laws of the United States, and complied with all the requirements of said laws, and was duly and legally discharged from all his debts, and especially from the debt hereinbefore described, and that the plaintiff has now, by reason of said discharge, no legal right of action against said Williams, and can sustain a suit for said debt against said Curtis only.” The common counts are then added for goods sold to the defendant and for an indebtedness upon an account stated, each to the amount of $600, and the declaration closes with the ordinary averment of a promise of the defendant, in consideration of the indebtednesses stated, to pay the several sums mentioned when thereto requested, and his neglect, on demand made, to pay the same.
The defendant pleaded the general issue, with notice of sundry matters not affecting the questions now made, and the court, to whom the case was tried, found the issue for the plaintiff, and adjudged that ho recover $634.42 damages and his costs. The defendant upon this filed a motion in arrest of judgment, on the ground of the insufficiency of the declaration, assigning specially—1. That the declaration showed upon its face that William C. Williams was a co-promisor with the defendant, and that he should therefore have been joined as a co-defendant in the suit.—2. That the declaration did not recite the alleged discharge of Williams, nor show what court, or that any court of competent jurisdiction, had granted the discharge. The court overruled this motion, and the defendant has brought the record before us by a motion in error.
[38]*38■ There being no finding of facts in the case it is impossible for us to see from the record that the court found the issue for the plaintiff on any particular count of the declaration. It may have been upon the count for goods sold to the defendant, or upon that for an indebtedness upon an account stated between the plaintiff and defendant, in either of which cases it is yery clear that the bankrupt should not have been joined as a co-defendant. The defendant, if ho had desired to freo the case -from the embarrassment of these counts, should have required the plaintiff to prove his allegations under, them, and on their not being proved should have asked that the issue upon them he found in his favor.
And even without these counts, the declaration would stand as a statement of an indebtedness original^ duo from the defendant and Williams as partners, and that Williams had been discharged in bankruptcy, and that in consideration of this indebtedness the defendant personally had promised to pay the sum demanded. If the court upon such a declaration had found the issue for the plaintiff, it would be a finding that the defendant actually made such a promise, and if he made it there was certainly a sufficient consideration for it. If he had given his note upon such- a consideration it would hardly be contended that the note was not a valid one. It would have been easy to avoid this difficulty. There being no implied promise growing out of that state of facts the defendant should have called on the court to find the issue in his favor unless the plaintiff should prove an express promise. We can not know that the plaintiff intended to allege merely an implied promise. An express promise is alleged precisely like an implied one, and unless the fact is brought upon the record by the pleadings or the finding,-the court must always treat it as if it were an express promise.
We have no doubt however, and it seems to have been taken for granted in the argument, that the promise here alleged was intended to he an implied promise only, and we shall be evading the real question between the parties unless we so consider it.
In this view the case presents to us three questions.
[39]*391 Was it necessary that Williams the bankrupt should have been made a party defendant ?
2. If it was necessary, can the question be made by a motion in arrest, the matter not having been pleaded in abatement ?
8. If it was not necessary, is not the declaration still insufficient in not reciting the discharge and alleging more fully the facts going to show the legality of the discharge ?
As the first of these questions is the most important we will leave that for final consideration, disposing of the others first.
And first, as to the adequacy of a motion in arrest. While it is a general rule that a non-joinder of a defendant must be pleaded in abatement, if advantage is to be taken of it at all, yet it seems to be laid down in the books that where the necessity of making the omitted party a defendant already appears on the pleadings the defendant is not compelled to plead the non-joinder in abatement, but may raise the question for the first time by a motion in arrest. The rule on this point is perhaps nowhere better stated than by Swift in his ‘Digest, Yol. I., p. 184, where, after giving the general rule that if only a part of joint contractors are sued, they must plead the matter in abatement and show that the other joint contractors not sued are living, he adds—“unless it should appear from the face of the declaration or any other pleading of the plaintiff, that another party executed the contract with the defendant, who is still living. If both these facts are admitted by the plaintiff the court will arrest the judgment, because the plaintiff himself shows that another ought to have been joined, and it would be absurd to compel the defendant to plead facts which already have been admitted.” If then we are to regard the matter that would have constituted the plea in abatement if one had been filed, as already set up in the declaration, we should feel compelled to hold, in accordance with the rule, that the defendant need not aver and prove it, but could take advantage of the plaintiff’s own admission, and make it the ground of a motion in arrest of judgment.
[40]*40But it is very clear that, to open this door for the defendant, the plaintiff must have alleged, and thus admitted, all that it would have been necessary for the defendant to have alleged in an ordinary plea in abatement. The rule that allows the defendant, after having gone to trial upon the. merits, without hinting his intention to raise a question as to the necessity of making other parties defendants, and thus taking his chance for a verdict, and then, if he fails of that, falling back upon the liability of the writ to abatement—a question in its nature a preliminary one, and not regarded with favor even when formally raised by a plea in abatement— is one that the court will apply with reluctance, and will not extend beyond the strictest limits to which, without repudiating the rule, it can be confined. Applying the rule in this spirit we can not overlook the fact that the plaintiff in his declaration has not averred, and so has not admitted, that Williams the bankrupt co-debtor is still living. The nearest approach to an admission of this is in the allegation that the plaintiff “ has now, by virtue of said discharge, no legal right of action against said Williams.” There is here a fair implication that Williams is living, as if not living the plaintiff would not have to base his want of a legal cause of action against him upon “his discharge. But we are to look at this averment, not for the purpose of finding its possible, or even its probable meaning, but for the purpose of seeing whether the admission is the full equivalent of the necessary averment and proof on such a point in a plea in abatement. Now in a plea in abatement for the non-joinder of a co-debtor it is absolutely necessary to aver in terms. that such co-debtor is still living. Such are all the forms. 2 Swift Rev. Dig., 620; 2 Chitty PL, 449. In the absence of this admission on the part of the plaintiff the defendant could take advantage of the non-joinder only by a plea in abatement, and can not do it by a motion in arrest of judgment.
But the defendant, in the next place, claims that, even if the non-joinder could not be taken advantage of by his motion in arrest, yet that he can by that motion raise the question of the sufficiency of the declaration in other respects, and par[41]*41ticularly in its omission to recite the discharge of the bankrupt co-debtor, and to allege more fully the facts going to show the legality of the discharge. But this is clearly mere-matter of form, that is good after verdict. The declaration alleges that Williams “was duly declared a bankrupt under and in accordance with the bankrupt laws of the United States, and complied with all the requirements of said laws, and was duly and legally discharged from all his debts, and especially from the debt hereinbefore described.” Surely if this form of alleging the discharge is open to criticism at all, it is at the most a defective statement of good matter and not a case of material defect.
The final and principal question m the case we are not under the necessity of deciding, since we hold that it is not properly raised, but as it has been fully argued, and is one of some practical importance, we conclude to give our views upon it.
It is undoubtedly the common law rule, recognized by all the English authorities, that where a debt was originally due from two or more persons, one of whom has been discharged in bankruptcy, the creditor suing the non-bankrupt co-debtor or co-debtors, must also make the bankrupt a defendant, and on his pleading his discharge must enter a nolle prosequi as to him, and proceed with his action against the others, taking judgment against them only. The reason given for the rulo is that the bankrupt defendant may not choose to plead his discharge, but to let judgment go against him, in which case the judgment would be a binding one, and the non-bankrupt defendants would have the benefit of it, if compelled to pay the amount, in being able to compel him to contribute. But this reason has no foundation in good sense. It is hardly conceivable that any bankrupt who cared enough for his debts to be at the expense and trouble of going through bankruptcy, would voluntarily waive the protection of his discharge, and allow a valid judgment to be taken against him for one of his former debts. If he would do this he would probably pay the debt without a suit, or if he wished to revive the debt while not able at present to pay it, he [42]*42would give Ms note for it and save Ms creditor the expense and trouble of a suit. And as to his liability for a contribution, he would be as ready to admit that by giving his note to his co-debtors for his share, or by allowing them to take judgment against him for the amount, as he would to lay the foundation for it by allowing a judgment to be taken by the principal creditor. Taking into consideration human nature and the ordinary principles of human action, the possibility that a discharged debtor will not avail himself of his discharge is one of the slenderest foundations conceivable for a practical rule of law. The absurdity of the rule is more strikingly shown when we consider that the bankrupt defendant, oil appearing and pleading his discharge,, and having a nolle prosequi entered as against him, is entitled to his costs, ( Camp v. Gifford, 7 Hill, 169,) so that the plaintiff is at the expense and trouble of making the bankrupt a defendant and serving the process upon him, but is then compelled, when he comes into court and pleads his discharge, to pay him for his attendance and withdraw his case as to him, and take the only judgment that the law could from the first have expected Mm to take, against the non-bankrupt defendant or defendants alone. This, if it involved no trouble and no cost, would seem like one of those vain things that the law does not require; but it is worse than vain in that it involves both trouble and cost. The rule that requires all this is so much against good sense and reason that the British Parliament in 1833 wiped it out by the statute of 3d and 4th William 4th, ch. 42, sec. 9. That statute provides “ that to any plea •in abatement in any court of law of the non-joinder of another person, the plaintiff may reply that such person has been discharged by bankruptcy and certificate, or under the act for the relief of insolvent debtors.”
But we are not called upon to decide whether the common law rulé, without substantial foundation in reason, ought by force of authority to be recognized and adopted in this state. If the case required us to determine this point, we think we should hold that, under our simple rules of pleading and practice, and in the prevailing disposition to discard teclmi[43]*43ealities, a declaration like the one in the present case is sufficient, and that it is not necessary that a co-debtor who has been discharged in bankruptcy should be made a defendant with his co-contractors.
Wc have remarked that it is not necessary that we decide this point. A statute, passed in 1865, (Gen. Statutes, p. 441, sec. 1,) provides that “ a discharge to one of several joint debtors, purporting to discharge him only, shall not effect the claim of the creditor against the other joint debtors, but they may be sued for the same, and may set off any demand which could have been set off, had such suit been brought against all the original joint debtors.” Here, while the provision that the discharge of one joint debtor shall not affect the claim of the creditor against the other, does not in terms provide and perhaps does not necessarily imply that the suit against such non-discharged' debtor may be brought against him alone, yet the later part of the statute, in speaking of the right of set-off being the same as if the suit had been brought against all the original debtors, clearly implies that the suit intended against the non-discharged debtors is a suit against them alone, without making the discharged debtors parties defendants; and it is perhaps a fair implication of the first clause of the statute that if the claim upon the non-discharged debtors is to be in no manner affected, it is not merely in full force against them as a personal debt, but as a debt against them alone, and to be sued upon and enforced as if it were in its origin and in every respect a debt against them alone. At any rate we feel clear that the statute taken as a whole may be regarded as warranting the mode of proceeding adopted by the counsel for the plaintiff in this case.
There is no error in the judgment below, and it is affirmed.
In this opinion the other judges concurred.