Moore's Executors v. Russell

5 Ky. 442

Opinion

OPINION of the Court, by

Ch. J. Boyle.

This was an action of debt, in which the plaintiff declared upon an obligation which is alleged to have been sealed by the defendant’s testator. On oyer, the obligation appearing to have been made jointly by the testator and another, the defendants demurred, but the demurrer w* overruled, and final judgment given by the court for the debt in the declaration mentioned ; from which judgment the defendants appealed to this court,

It is a general rule, that all joint obligors or contractors must be made defendants, and the plaintiff maybe compelled to join them all, if the omission be taken advantage of in due time, and by a proper plea. But it is well settled, that where an action is brought upon a joint deed or contract, against part only of the co-ob-ligors or contractors, the matter must be pleaded in abatement, and cannot be taken advantage of upon any other plea or in any other manner

(a) — -See the case of Cabell vs. Vaughan, 1 Saund. 291, and Williams’ note 4, to that case. The objection taken in this case, to rendering final judgment on the demurrer, without awarding a writ of inquiry, is so obviously untenable that it does not deserve to be noticed.

The judgment affirmed, with damages and costs.

In another cafe between the fame parties, it was decided (the fame day) that this matter could not avail upon a motion to exclude the bond from go* ing in evldenee to the jury, for the fuppoied variance between the bond and declaration,,