Judge of Probate v. Webster

Bartlett, J. Where a joint and several bond has been given, "it is at the election of the obligee to consider such a bond either a joint or several one. If he sues one or each of the obligors, he acts upon it as a several bond. If he sues all of them he acts upon it as a joint bond.” 1 Wms. Saund. 291, g.; 1 Chitt. Pl. *43; Met. Yelv. 27 n. Of course, in an action upon a joint bond there must ordinarily be a joint judgment; and in this case the plaintiff, by bringing the action on the bond against the three obligors, elected to treat the bond in that suit as joint, and in that suit judgment could not be entered against all the defendants otherwise than jointly ; consequently, the amendment of the record of the judgment, for which the plaintiff moved, could not be granted. As that amendment could not be made, and the declaration was then upon the judgment only, the demurrer to the plea in abatement should not have been sustained. Com. Dig. "Abatement,” F. 8; 1 Wms. Saund. 291, c. & d.; 1 Smith’s L. C. (Am. Ed.) 485; Valentine v. Gerard, 2 Rich. 9. It was undoubtedly within the power of the court, for sufficient cause, to vacate the judgment entered at the September Term, 1864; Bellows v. Stone, 14 N. H. 203; Frink v. Frink, 43 N. H. 508; McClees v. Burt, 5 Met. 200; Stickney v. Davis, 17 Pick. 170; and also to allow the amendment adding the count upon the bond; Downer v. Shaw, 23 N. H. 126; and as no question as to the propriety of the exercise of these powers in the present case has been reserved for our determination, we are not in a position to revise the ruling of the court at the trial term. Taylor v. Dustin, 43 N. H. 495; Smith v. Boynton, 44 N. H. 530; Bowman v. Sanborn, 25 N. H. 87. The motions to vacate the judgment and amend the declaration were granted "if .necessary.” The plea in abatement must have prevailed if the motion to amend had not been granted; but the vacating of the judgment was not necessary so far as respects that plea or the amendment, upon which the questions then before the court arose, for the plea of a former recovery, if available here, is in bar. 1 Chitt. Pl. *485; 2 Saund. Pl. 521 & Ev. 610; Story’s Pl. 179. Whether or notit might be necessary to the maintenance of these actions upon the bond to vacate the former judgment, (see 1 Chit. Pl. (11th Am. Ed.) *44, n.,) we do not now propose to inquire, for, should that question be material, it can be brought before us more regularly; and besides the questions before the court at the trial term seem to have arisen in reference to the plea in abatement. The first and second exceptions are sustained, and the third is overruled.