Kent v. Holliday

Lis Grand, C, J., delivered the opinion of this court. This suit was brought by the appellee, as endorsee, against the appellant, as acceptor, of a bill of exchange. The writ was issued against the defendant in his individual capacity. The declaration alleges, in substance, that, J. T. Lyles &.

Co. drew their bill of exchange, and directed the same “to the said defendant and one Thomas H. Kent of Joseph, trading under the name of Thomas H. Kent of Jos. &. Co., requiring them to pay to R. G. Mackall, or order,” &c., “and the said defendant and the said Thomas H. Kent of Joseph,, trading as aforesaid, accepted the said bill,” &c. The defendant demurred to this declaration, upon the ground, substantially, that it sets forth as cause of the action, & joint obligation of the defendant with one Thos. H. Kent of Jos., trading under the firm of of Thomas H. Kent of Jos.

Co., and that the suit should have been against the- ³⁹² joint acceptors in (heir partnership capacity, and not against the defendants in his individual capacity. The plaintiff entered a ne recipiatur to this demurrer, upon the ground, it is presumed, that the defendant had previously pleaded to the declaration, but the court overruled this motion, and the plaintiff then joined in the demurrer. Upon this state of the case, no exception to this action of the court having been taken, by the plaintiff, he cannot be heard to say, that the demurrer was not interposed at the proper time. The first question then is, ought this demurrer to have been sustained, the court below having overruled it., and the judgment being against the defendant?

The declaration clearly states the case of a joint contract, and the general rule is, that, in such a case, all the joint contractors must be joined as defendants. “In an action against a partnership firm on a partnership contract not under seal, all those who were partners at the time of the contract, ought to be joined as defendants; for a contract when made with partners is originally a joint contract, though it may be separate as to its effects.” Coll, on Partnership, 419, 420, (Ed. of 1834.J But, it is said, that the omission to join as defendant a party jointly liable, can only be availed of by plea in abatement. Such is undoubtedly the general rule, but it is equally well settled, that if it expressly appear on the face of the declaration, that the party omitted is still living as well as that he jointly contracted, the defendant may demur, move in arrest of judgment, or sustain a writ of error. 1 Ghitty,s Pleadings, 46. In this case, the declaration is silent as to whether the other joint contractor is dead or alive; it says nothing upon the subject. There is much conflict in the authorities whether in such a case a demurrer will lie.

On the one hand, there is high authority for saying, that in order to authorise a demurrer the declaration must expressly state that the party omitted is still living. On the other hand, decisions of equal weight have held, that the non-averment' of the death of the defendant who is omitted, is a sufficient admission that he is still alive; — that having shown there was a joint-contractor at ³⁹³ the time of the contract made, the presumption is that he is still alive, unless the plaintiff will rebut the presumption hitmself has raised by showing that he is dead. It is difficult to ■determine to which side the preponderance of authority on this question inclines. The former Court of Appeals, in the case of Merrick vs. The Bank of Metropolis, 8 Gill, 74 , has said, however: — -“Tf the declaration discloses that the promise is joint, it is necessary to aver that the other is dead, or to account for his not being joined in the action, or it is bad upon demurrer or writ of error.5’ And in the case in 5 Greenleaf s Reps., 443, there referred to, it was held that the declaration was fatally bad for want of an averment that the ■co-promisors were dead at the time of the commencement of the