9 Gratt. 474 | Va. | 1852
delivered the opinion of the court.
This was an action of debt brought by the appellee Jane Floyd against Robert Morris and the appellant Benjamin Strange, on a ne exeat bond. It abated as to Morris by a return of “ no inhabitant” on the writ. Strange demurred generally to the declaration, and pleaded condition performed; and issues were thereon joined. The demurrer was overruled, and verdict and judgment were rendered for the plaintiff for the penalty of the bond and costs, to be discharged by the payment of the. damages assessed by the jury and the costs. To that judgment a supersedeas was awarded by this court, on a petition in which the error assigned in the judgment is, the overruling of the demurrer; which it is insisted ought to have been sustained, first, because the declaration showed that the suit was brought by only one of three obligees, no excuse being shown for not joining the other two as coplaintiffs; and secondly, because the declaration does not aver the nonpayment of the penalty of the bond to the other obligees beside the plaintiff. The bond is copied in the record, but was not made part thereof by oyer; and the court cannot therefore 109k to it for the purpose of ascertaining its nature; but must look alone to the declaration. The bond, as stated in the declaration, is a joint bond to the plaintiff and two others. And there is no better settled rule of law, (except so far as it may be affected by the second section of the 116th chapter of the Code, which does not apply to this case,) than that all the obligees in a joint bond ought to be joined in the action thereon; or the death of such as are not so joined, or some other sufficient excuse for not joining them, ought to be averred in the declaration; and that if it appear upon the face of the declaration that there are other obligees who ought to be, but are not, joined in the action, the objection is fatal on general demurrer. 1 Chitty’s Pl. 7 and 8 ;
Judgment reversed.
