Lambert v. Lagow

1 Blackf. 388, 1825 Ind. LEXIS 35

Opinion

Blackford, J.

Debt against Lambert upon the following ob ligation: “On or before the 1st Sept. 1823, I promise to pay Wilson Lagow or order 425 dollars, &c. Witness my hand and .seal this 7th Dec. 1821. — Lambert & Dixon, (seal).” The defendant pleaded in abatement the non-joinder of Dixon. The pleas were demurred to, and final judgment was rendered for the plaintiff.

Judah, for the appellant. Tabbs, for the appellee.

The obligation reads, I promise to pay, &c., witness my hand, Sec. The plaintiff had a right to treat this as a several obligation, and institute his action accordingly. He has done so; and consequently the plea of Lambert, that there was another obligor not named in the suit, cannot be supported. In March v. Ward, Peake’s N. P. 130, the note was, promise to pay W. M. 81. 5s., and was signed, Robert Bowling, Thomas Ward. Ward alone was sued, and the action sustained. The Court said the note was several as well as joint. Vide also Hunt, admr. v. Adams, 5 Mass. 358, and Forster v. Fuller, 6 Mass. 58, to the same point (1).

The judgment however, in this cause, being upon demurrer to pleas in abatement, should not have been peremptory, quod recuperet, but only i terlocutory, quod respondeat ouster. Tidd, 588 (2).

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the joinder in demurrer are set aside, with costs. Cause remanded, Sec.

Footnotes

(1)

Acc. Clark v. Blackstock, 1 Holt, 474. — Hall v. Smith, 1 Barn. & Cress, 407.

(2)

Form of the judgment of respondeat ouster: — Whereupon all and singular the premises aforesaid being seen, and by the Court here fully understood, and mature deliberation being thereupon had, it appears to the said Court here, that the said plea, by the said .2. B. above in manner and form aforesaid pleaded in abatement, and the matters therein contained, are not sufficient in law to quash the writ of the said C. D.: therefore it is considered that the said -2. B. do answer further to the said writ of the said C. D. Arch. Forms, 300.

This judgment, though styled interlocutory, differs from the ordinary judgments of that name. An interlocutory judgment, generally, establishes the light of the plaintiff to recover, but leaves the quantum of damages to be afterwards ascertained. But a judgment for the plaintiff on a demurrer to a plea in abatement, only shows that the defendant has mistaken the law on a point not affecting the merits of the case, and therefore merely requires him pa offer, if he can, a further defence. Bing, on Judg. 2.

Upon this judgment of respondeat ouster, no costs are allowed to the plain tiff, as he has not yet succeeded in the suit. Should he finally prevail, howet- or, he will then be entitled to his costs. Haines v. Corliss, 4 Mass. 659.