6 Blackf. 212 | Ind. | 1842
Seire facias against bail. The writ shows a recognizance, regularly taken and recorded, by which one William Wilson, the principal, bound himself to the State in the sum of $400, and one MoCarty together with the defendant below, the plaintiff in error, the sureties, were jointly bound in the same sum; and which is conditioned, that the principal should “appear before the judges of the Henry Circuit Court at the (then) next term thereof, and from day to day, and answer the State of Indiana on a charge of grand larceny, and abide the judgment and decision of the Court therein, and not depart without leave, &e.” It also appears that, on the fourth day of the proper term of the Court, the principal and his sureties were called and made default. The scire faoias is several against the plaintiff in error. Pleas, 1, That the principal did personally appear at the-proper term on the fifth day thereof, and continued from day to day, ready to answer the charge against him. 2, That he was never called and required to appear before the Henry Circuit Court, and answer the charge of grand larceny, or any other charge. General demurrer to each plea sustained; and judgment rendered against the plaintiff in error for $400 and costs.
The second plea is not attempted to be vindicated, and is evidently invalid. If the defendant below designed to deny the forfeiture of his recognizance, he should have pleaded nul tiel record, for the forfeiture is alleged by the scire facias to be of record.
But the plaintiff in error also contends that the judgment in favour of the State is erroneous, on account of the insufficiency of the scire facias for the non-joinder of the other recognizor; McCarty; and he insists that he can urge this matter under the demurrer to the pleas.
Some of the doctrines which have been established in relation to the joinder of parties seem to be somewhat arbitrary. In actions founded on contract, if any of those living to whom the promise or obligation is made be-omitted as plaintiffs, or any to whom it is not made be joined, and the fact appear in the declaration, it is fatal on demurrer, in arrest of judgment, or in error; and if the defect is not shown by the pleadings, it is a ground of nonsuit under the general issue. 1 Chitt. Pl., 13; Vernon v. Jefferys, 2 Str., 1146; Anderson v. Martindale, 1 East., 497; Scott v. Godwin, 1 B. & P., 67. But when the action is by executors or administrators, either on contract or tort, and there is a co-executor or administrator not joined, objection to the non-joinder can be taken only (after oyer of the letters testamentary or of administration) by a plea in abatement, that the omitted executor or administrator is living and not made a party. 1 Chitt. Pl., 20; 1 Saund., 291 g, n.
The record before us only shows, that there was a joint recognizor, who is not a party to the scire facias; but it does not show that he was living at the commencement of the suit. The Circuit Court, therefore, committed no error in rendering judgment in favour of the State.
Per Curiam.—The judgment is affirmed with costs.
Ante p. 5, Acc. Bragg v. Wetzel, Vol. 5 of these Rep., 95.
In the case of a judgment against two, and a suit upon it against one of them only, it has been decided that the declaration, showing the judgment to be joint, and assigning no reason why the omitted party was not joined in the suit, may be objected to on general demurrer or in arrest of judgment. Gilman v. Rives, 10 Peters, 298.