Thompson v. Strain

Catón, J. This case differs from that of Puschel v. Hoover, decided at this term, only in this : in that case, it appeared on the face of the declaration that another, who is not sued, made the note sued on, with the defendant, and this, it is insisted, may be taken advantage of by demurrer, because it appears on the face of the declaration that another should have been sued with the defendant. I have examined the cases with some attention, and find that the text in Chitty is sustained by the decisions of the courts. After stating that the non-joinder of a defendant cannot be taken advantage of on the trial, but must be pleaded in abatement, the author says: “ If, however, it expressly appear on the face of the declaration or some other pleading of the plaintiff, that the party omitted is still living, as well as that he jointly contracted, in that case, the defendant can denmr, move an arrest of judgment, or sustain a writ of error.” I am not satisfied, indeed, that this does not state the exception broader than it can be sustained on principle, for the plaintiff could reply to a plea in abatement, of the non-joinder of defendants, that the parties not sued were infants, or non compos when the promise was made, as well as that ho had deceased before the commencement of the suit. It is sufficient, however, for our present purpose to remark, that it does not appear on the face of the declaration or other pleading of the plaintiff, that the other party who made the note was still living. The judgment of the circuit court must be reversed and the cause remanded. Judgment reversed.