6 Wend. 629 | N.Y. Sup. Ct. | 1831
The defendant objects to the varimce between the bond as declared upon, and as set forth in the plea upon craving oyer. We have had occasion recently to speak of the manner of taking advantage of such a variance. On receiving the oyer the defendant, if he finds it to be of an instrument different from that described in the declaration, should, without setting it forth, plead non est factum, and avail himself of the variance when the issue comes on to be tried, and the bond is offered in evidence; or he should set forth the bond as it is given to him on his craving oyer of it, and demur to the declaration for the variance between it and the oyer. Neither of these modes has been adopted in this case. If the rule that is usually applied to pleadings terminating in a demurrer is to govern in this case, we must look back to the first defect apparent upon the record, and allow the defendant’s objection to the variance between the oyer and the bond described in the declaration. The plaintiff, however, contends that there is no variance ; that he is entitled to maintain his action against one of the obligors, although the bond be executed by several, they having bound themselves jointly and severally; and that though the bond is joint to the plaintiff and Willis, the interest and cause of action of the plaintiff being several, the bond must be taken to be several, and each of the obligees be permitted to maintain his action for his particular damage, notwithstanding that the bond be joint; and in support of this proposition, cites 1 Saund. 154, n.; 1 Bull. N. P. 157.
The general rule cannot be questioned, that in suits on bonds or deeds, all the obligees or covenantees, if alive, must join as plaintiffs in bringing the action, 1 Saund. 291, f. note 4, and the authorities' there died; and if they do not so join, the defendant can take advantage of the omission. There was formerly some difference of opinion as to the manner in which he was to do it. Cases are to be found in which it was ruled that the defendant could avail himself of this omission only by a plea in abatement; but Sergeant Williams declares these cases not to be law. The correct mode is for the defendant to crave oyer of the bond or deed, and demur generally, unless it appears on the face of the declaration
It may be apprehended that the law, as thus laid down, is in conflict with the principle contended for by the plaintiff
Judgment for defendant, with leave to plaintiff to amend his declaration, on payment of costs.