61 Miss. 67 | Miss. | 1883
delivered the opinion of the court.
The circuit court did wrong to sustain the objection made on the trial to the introduction of the bond sued on because of the non-joinder of some of the obligees as pláintiffs. There was no variance between the instrument sued on and that offered in evidence. It was correctly described in the declaration, but the suit was not rightly brought in the name of part of the obligees. It should have been in the name of all or their non-joinder accounted for on legal grounds. But as the defendant had not given written notice thereof with his plea, as required by § 1511 of the Code of 1880, the non-joinder of plaintiffs was not available to him. The court did right to permit an amendment by joining the parties omitted.
The plea of the pendency of another action was fatally defective in not averring that it was a prior action and the demurrer to it should have been sustained, but it is clear that the declaration does not contain a cause of action entitling the plaintiffs to a recovery, for all the damages alleged to have been suffered are such as resulted from the institution of the suit and its prosecution and
Affirmed.