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Clapp and another v. Preston and others
£y gie Court, Cole, J. Within tbe repeated decisions of this court, it is very clear that tbe demurrer in this case was not frivolous. Tbe court could hardly say, on a bare inspection of tbe demurrer, without any argument or examination of authorities, that it was bad. Indeed, under tbe old practice, tbe demurrer would have to be sustained.
For tbe rule was, that where tbe contract was joint and several tbe plaintiff must sue all jointly or separately, and could not treat tbe contract as joint in respect to two or more of the parties. 1 Saunders’ R., 291; Streatfield et al. vs. Halliday, 3 T. R., 782; Platner vs. Johnson, 3 Hill, 476; Miller vs. Mc 545 Cagg, 4 id., 35; Butler vs. Rawson, 1 Denio, 105.
Section 21, cbap 122, R S., has probably changed this rule, in providing that when persons are severally liable upon the same obligation or instrument, including parties to bills of exchange and promissory notes, they may all or any of them, be included in the same action, at the option of the plaintiff. But Justice Head, in Morehouse vs. Ballou, 16 Barb.
(S. C.), 289, seems to express a doubt whether, even under such a provision of law, two out of three joint and several makers of a promissory note could be made jointly liable, if the objection for that cause was duly taken; for he says such is not the contract of the parties. But it is not necessary to determine whether this is a correct construction of the statute, since the merits of the demurrer are not now to be passed upon.
It is sufficient to say that judgment should not have been rendered against the appellants on account of the frivolousness of the demurrer. It is not necessary to consider at any length whether the circuit judge could out of court give judgment on the demurrer, according to sec. 28, chap. 132. The counsel for the appellants contends that this section is unconstitutional, for attempting to delegate to a circuit judge at chambers judicial powers, which, under our constitution, can only be exercised by courts.
It might not be improper to say in reply to the argument of the counsel upon this point, that our opinions are adverse to his, and that we have in effect decided the other way in many cases which have come before us. But for the reason already given, the judgment in this case must be reversed, and the cause remanded for further proceedings according to law.