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(ii) Joint promisees.

SWEIGART v. BERK et al.

8 SERGEANT & RAWLE (PENN.), 308.-1822.

Action of debt on a bond. Judgment for plaintiffs.

[PART III.

The bond was given by defendant to "the widow and heirs and legal representatives of Peter Berk, deceased," conditioned to be void "if the said Sweigert should pay to the said widow and heirs and legal representatives of the said Peter Berk one thousand pounds, gold or silver coin, lawful money of Pennsylvania, at or immediately after the death of Margaret Berk, widow of the said Peter Berk, deceased, or to the said deceased's heirs or representatives, in equal shares alike, with lawful interest for the same to be paid annually unto the said Margaret Berk, during her natural life," etc.

The statement of the cause of action averred the death of Margaret Berk, and that the plaintiffs were seven of the ten

imply a promise to contribute, in order to afford a remedy. But as this is in most instances a fiction, in aid of an equitable right, it will never be tolerated where the relation upon which the equity is founded is wanting." -Gardiner, C. J., in Tobias v. Rogers, 13 N. Y. 59, 66.

"An action at law by a surety for contribution must be against each of the sureties separately for his proportion, and no more can be recovered, even where one or more are insolvent. In the latter case, the action must be in equity against all the co-sureties for contributions, and, upon proof of the insolvency of one or more of the sureties, the payment of the amount will be adjudged among the solvent parties in due proportion."— Miller, J., in Easterly v. Barber, 66 N. Y. 433, 439.

"We have often held, as between the creditor and the estate of a deceased surety, that the joint obligation of the latter ended with his death. We are not yet prepared to decide that his several obligation, originating at the date of the common signature, to contribute ratably to the payments compelled from his associates, also terminates at his death. . . . The justice of such a rule is apparent. Originating in equity, it has been grafted upon the law with the aid of an implied promise to secure the legal remedy. We see no reason to reverse it, but every consideration of equity and justice leads us rather to maintain and enforce it."- Finch, J., in Johnson v. Harvey, 84 N. Y. 363, 365, 367.

"It is well settled that one surety has a claim against another, for contribution for any sum he may be compelled to pay, although such co-surety may have been discharged from liability primarily upon the same contract." -Peters, J., in Hill v. Morse, 61 Me. 541, 544.

children of Peter Berk, and each entitled to one hundred pounds of the one thousand pounds promised by defendant.

TILGHMAN, C. J. It appears by the plaintiffs' own showing, that the bond was given to ten obligees jointly, all of whom are living, and the action is brought by only seven of them. I am at a loss to conceive on what principle the action can be supported. It is well settled that if a bond be given to several obligees they must all join in the action, unless some be dead, in which case that fact should be averred in the declaration. And if it appear on the face of the pleadings that there are other obligees living who have not joined in the action, it is fatal, on demurrer or in arrest of judgment. The authorities on this point are numerous, and will be found collected in 1 Saund. 291 f. The counsel for the plaintiffs has urged the inconvenience of this principle when applied to the bond in suit, where it appears, by the condition, that ten persons have separate interests, and it may be that some of them have received their shares before the commencement of this suit. There is very little weight in that argument. The acceptance of the bond was the voluntary act of the obligees, and if people will enter into contracts which are attended with difficulties, they have no right to expect that established principles of law are to be prostrated for their accommodation. But in truth, there is very little difficulty in the case The action may be brought on the penalty of the bond, in the name of all the obligees, and the judgment entered in such a manner as to secure the separate interest of each. The action may be supported although some of the obligees have received their shares, because the bond is forfeited unless they have all been paid.

It was objected that those who had been paid might refuse to join in the action, or might release the obligor. But the court would permit those who are unpaid to make use of the names of the other obligees, against their consent; neither would their release be suffered to be set up in bar of the action. It may be resembled to the case of an assigned chose in action, where the action is brought in the name of the assignor, for the use of the assignee; there the release of the assignor would not be regarded. A release, in such case, would be a collusion between

the assignor and assignee [debtor] to defraud a third person, and therefore void. It is unnecessary to decide whether each of the obligees, in the present case, could have supported a separate action for his separate interest, appearing on the face of the condition. I will only say that such an action would be hazardous. But this action has not been brought for the separate interest of any one. Seven of the obligees have joined in it. So that it is neither joint nor several. On no principle, therefore, can the action be supported. There were several other points discussed in the argument, in which the court will give no opinion.

The judgment of the Court of Common Pleas must be reversed, and restitution awarded.

Judgment reversed and restitution awarded.1

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§ 2. Joint and several promises.

(i.) Joint and several promisors.

CUMMINGS et al. v. THE PEOPLE, &c.

50 ILLINOIS, 132.-1869.

Action of debt on a sheriff's bond. Judgment for plaintiff. The declaration averred five obligors, but no process issued against one of them.

The next objection is,

MR. CHIEF JUSTICE BREESE. that as the bond in suit was a joint and several bond, suit should be brought against all the obligors, or against each co-obligor severally, and not against an intermediate number.

1 Accord: Ehle v. Purdy, 6 Wend. (N. Y.) 629; Farni v. Tesson, 1 Black (U.S.) 309.

A release by one of several joint promisees is, in the absence of collusion and fraud, a bar to an action by the others. Pierson v. Hooker, 3 Johns. (N. Y.) 68; People ex rel. Eagle v. Keyser, 28 N. Y. 228; Myrick v. Dame, 9 Cush. (Mass.) 248.

Upon the death of a joint promisee the right of action vests in the survivors. Crocker v. Beal, 1 Lowell (U. S. C. C.), 416; Murray v. Mumford, 6 Cow. (N. Y.) 441; Indiana &c. Ry. v. Adamson, 114 Ind. 282; Donnell v. Manson, 109 Mass. 576.

There is no averment in the declaration that Argo was dead at the time of the commencement of the suit. The rule is, if one of the joint obligors be dead, it is not necessary to notice him in the declaration, nor need the survivors be declared against as such, but they may be sued, as if they alone were primarily liable. 1 Ch. Pl. 43. To the same effect is Richards v. Heather, 1 Barn. & Ald. 29, and Mott v. Petrie, 15 Wend. 318. The reason is obvious. The rule being that on a joint and several obligation, executed by more than two persons, one may be sued, or all, but not an intermediate number; therefore, if one of the co-obligors be not named in the declaration, those who are sued may plead the fact in abatement. To such a plea the plaintiff could reply, that such co-obligor was dead before the commencement of the suit, as that would be a matter in pais.

It is averred, in this declaration, that Argo executed the bond as one of the sureties; but the defendants in error say, in the brief of counsel, that he was dead at the time the suit was commenced. If this was so, then it should not have been alleged in the declaration that he executed the bond, but having alleged it the question is presented, is not the declaration defective by reason of his non-joinder in the action, and cannot advantage be taken of it by motion in arrest of judgment, or an error?

The defendants in error contend that, though Argo might be living, and should have been made a party, it is too late now to make the objection it should have been made by plea in abatement, and cannot be raised on error.

It is admitted, if the defendants in error had not alleged in their declaration that the defendants therein, together with Argo, executed the bond, the defendants would have been required to plead his non-joinder in abatement. But the fact appears on the face of the declaration; a plea, therefore, was not necessary to bring it before the court. Why inform the court by plea of a fact which the plaintiff himself places on the record? This defect in the declaration could have been reached by general demurrer, or by motion in arrest of judgment, and can now be availed of on error.

Plaintiffs, by their own showing, inform the court there is another joint obligor, who has not been joined in the action; it

was patent of record, and no plea was necessary to bring the fact before the court. 1 Ch. Pl. 46; 2 Sanders 9, note 10 to the case of Jeffreson v. Morton et al.; Cobell v. Vaughan, 1 Id. 291, in note; Whitaker v. Young, 2 Cowen, 569; Horner v. Moor, cited in 5 Burrow, 2614; Leftwich v. Berkeley, 1 Hen. & Munf. 61; Newell v. Wood, 1 Munf. 555; Harwood et al. v. Roberts, 5 Maine, 441. The rule is well settled that matters in pais only need be pleaded. This is matter of record.

This record shows a joint and several bond executed by five persons, four of whom are sued. This appearing on the face of the declaration, the case is brought within the principle of the cases above cited, and about which there can be no doubt. For this error the judgment must be reversed.

Judgment reversed.1

BANGOR BANK v. TREAT et al.

6 GREENLEAF (6 MAINE), 207.-1829.

MELLEN, C. J. This is an action of assumpsit and the declaration states that the note was signed by the defendants and Allen Gilman jointly and severally; and that a judgment had been recovered on the note against Gilman in a several action against him. The defendants have moved in arrest of judgment on account of the joinder of them in the present suit.

When three persons by bond, covenant, or note jointly and severally contract, the creditor may treat the contract as joint or several at his election, and may join all in the same action or sue each one severally; but he cannot, except in one case, sue two of the three, because that is treating the contract neither as joint or several. But if one of the three be dead, and that fact be averred in the declaration, the surviving two may be joined.

In the present case Gilman is living. The plaintiffs contend that as judgment had been recovered against him, such judgment

1The rule is elementary that when an obligation is joint as well as several, all must be proceeded against jointly, or each severally. There is no authority for suing three out of four joint makers.". Champlin, J., in Fay & Co. v. Jenks & Co., 78 Mich. 312. See also State v. Chandler, 79 Maine, 172.