Gilman obtained a judgment in an action of debt instituted in
the circuit Court of Kentucky against Rives and Lyric, and he
instituted a suit against Rives on the judgment, in the Circuit
Court of West Tennessee. The declaration stated the judgment to
have been joint, against Rives and Lyric, and no reason was
assigned in it, why Lyne was not a party to the suit. The
defendant, Rives, demurred, and the circuit court sustained the
demurrer. The judgment of the circuit court was affirmed.
Generally speaking, all joint obligors, and other persons bound
by covenants, contract, or
quasi-contract, ought to be
made parties to the suit, and the plaintiff may be compelled to
join them all by a plea in abatement for the nonjoinder. But such
an objection can only be taken advantage of by a plea in abatement,
for if one party only is sued, it is not matter in bar of the suit
or in arrest of judgment upon the finding of the jury, or of
variance in evidence upon the trial. But the same doctrine does not
appear to have been acted upon to the full extent in cases of
recognizance and judgments and other matters of record such as
bonds to the Crown. If in cases of this sort it appears by the
declaration or other pleadings that there is another joint debtor
who is not sued, although it is not averred that he is living, the
objection need not be pleaded in abatement, but it may be taken
advantage of upon demurrer or in arrest of judgment.
A judgment that a declaration is bad in substance (which alone,
and not matter of form, is the ground of a general demurrer) can
never be pleaded as a bar to a good declaration for the same cause
of action. The judgment is in no just sense a judgment upon the
merits.
MR. JUSTICE STORY delivered the opinion of the Court.
The plaintiff in error, Gilman, brought an action of debt
against the defendant in error, Rives, upon a joint judgment
rendered in his favor against Rives and one Leonard H. Lyne, in the
Circuit Court for the District of Kentucky. The declaration is in
the following terms:
"For that whereas the said Benjamin Ives Gilman Jr., heretofore,
to-wit, at the November term, in the year of our Lord 1829, of the
Seventh Circuit Court of the United States, sitting in and for the
District of Kentucky at Frankfort in said state, before, &c.,
by the consideration and judgment of the said court, recovered
against the
Page 35 U. S. 299
said Peter G. Rives and one Leonard H. Lyne the sum of $6,860,
then and there adjudged to the said B. I. Gilman, Jr., for his
damages, which he had sustained by reason of the nonperformance of
the defendant and the said Leonard H. Lyne, of certain promises and
undertakings then lately made by them to the plaintiff, and also
his costs and charges by him about his suit in that behalf
expended, whereof the said Peter G. Rives, the present defendant,
and the said Leonard H. Lyne were convicted, as by the records,
&c., which said judgment still remains in full force and
effect, &c., whereby an action hath accrued to him the said B.
I. Gilman, Jr., to demand and have of the defendant the said sum of
$6,860 above demanded; yet the defendant, though often requested,
&c."
To this declaration there was a general demurrer filed, and upon
the joinder in demurrer, the circuit court gave judgment in favor
of the defendant,
"that the declaration aforesaid and the matters in the same
contained, are not good and sufficient in law to enable the
plaintiff to have and maintain his action aforesaid,"
&c.
The present writ of error is brought to revise that
judgment.
The sole question in the case is whether the action was
maintainable against the defendant Rives alone, the judgment
appearing on the face of the declaration to be a joint one against
him and Lyne, and no reason being assigned in the declaration why
Lyne was not made a party thereto. If it had appeared upon the face
of the declaration that Lyne was dead, or out of the jurisdiction
of the court, or incapable of being made a party to the suit; there
is no doubt that the action might well be maintained against the
other judgment debtor. The question then is whether the nonjoinder
of Lyne, as a codefendant, and the omission to aver any reason for
such nonjoinder, is a fatal defect, upon a general demurrer to a
declaration thus framed. The matter might, without doubt, have been
pleaded in abatement, and not having been so pleaded, it is
contended that it cannot be taken advantage of upon general
demurrer.
The doctrine which is to govern in this case is of a purely
technical nature, and turns upon the rules of good pleading. We
have certainly no desire to encourage exceptions of this sort, for
they are generally of a nature wholly beside the merits of the
case. But still, if they are founded in the general rules of
pleading and are supported by authority, it is our duty not to
disregard them.
Generally speaking, all joint obligors and other persons bound
by covenants, contract, or
quasi-contract, ought to be
made parties to the
Page 35 U. S. 300
suit, and the plaintiff may be compelled to join them all, by a
plea in abatement for the nonjoinder. But such an objection can
only be taken advantage of by a plea in abatement, for if one party
only is sued, it is not matter in bar of the suit or in arrest of
judgment, upon the finding of the jury, or of variance in evidence
upon the trial. Thus, for instance, if one obligor be sued upon a
joint bond, and upon oyer the bond is spread upon the record, and
thereby becomes a part of the declaration, by which it appears that
another person is named as a joint obligor; the party sued should
not demur, but should plead in abatement that the other sealed and
delivered the bond, and was in full life; for
non constat,
upon the oyer, that the other did seal and deliver the bond. So it
was held in
Whelpdale's Case, 5 Co. 119, and in
Cabell
v. Vaughan, 1 Saund. 291, and that doctrine has been
constantly referred to ever since, and was fully confirmed in
Rice v. Shute, 5 Burr. 2611. But if it should appear upon
the face of the declaration, or other pleading of the plaintiff,
that another jointly sealed the bond with the defendant, and that
both are still living; the court will arrest the judgment, and the
objection may be taken by demurrer, because the plaintiff himself
shows that another ought to be joined, and it would be absurd to
compel the defendant to plead facts which are already admitted. It
is unnecessary to do more to support this distinction than to refer
to the learned note of Serjeant Williams, to the case of
Cabell
v. Vaughan, 1 Saund. 291, note 4, where all the leading
authorities are collected and commented on.
But the same doctrine does not appear to have been acted upon to
the full extent in cases of recognizance and judgments and other
matters of record, such as bonds to the Crown. If in cases of this
sort it appears by the declaration or other pleadings that there is
another joint debtor who is not sued, although it is not averred
that he is living, the objection need not be pleaded in abatement,
but it may be taken advantage of upon demurrer, or in arrest of
judgment. Thus, in
Blackwell v. Ashton, Alleyn 21, a
scire facias was brought against three parties, upon a
recognizance acknowledged by them and the principal, jointly and
severally, and upon a demurrer, the writ abated by good advisement,
as the report says, because this being founded upon a record, the
plaintiff ought to show forth the cause of the variance from the
record. But if an action be brought upon a bond in the like case,
there the defendant ought to show that it was made by them and
others in full life, not named in the writ,
Page 35 U. S. 301
because the court shall not intend that the bond was sealed and
delivered by all that are named in it. There is another report of
the same case or of another case between the same parties in the
preceding term of the court in Styles 50, in which the points are
somewhat differently stated, but it is a very loose note. The case
in Alleyn 21, has been fully recognized and acted on in the recent
cases in the Court of Exchequer. In
Rex v. Young, 2 Anstr.
448, there was a
scire facias against two joint sureties
upon a recognizance to the King, and the declaration stated that
four persons became bound by the recognizance, without averring the
other to be dead, or outlawed. There was a plea put in by the
defendant, to which the Crown replied, and upon general demurrer
the plea and replication were held to be bad. An exception was
taken to the declaration that all the parties were not joined, and
it was held a fatal objection by the court. Lord Chief Baron
Macdonald, in declaring the opinion of the court, said:
"The defendant, however, rests on an objection to the
declaration that two of those jointly bound in the recognizance are
sued without the rest, and without averring that the others are
dead. And it is clear that this is valid objection to it. But it
has been contended that the objection should have been taken by a
plea in abatement. That rule holds where the fact does not appear
upon the declaration. But where it already appears on the
declaration that others ought to have been joined and are not, no
plea is necessary. It is clear from the cases cited in 5 Burr.
2611, and that in Alleyn, which corresponds very accurately with
the present."
The same point was adjudged in the same way by the same court in
the subsequent case of
Rex v. Chapman, 3 Anstr. 811.
As a question, therefore, of authority, the doctrine seems well
settled, and we cannot say that upon principle there is not good
sense in requiring the plaintiff in his suit to assign some reason
why, when he declares upon a joint judgment, he does not join
others whom he states in his declaration to be jointly liable.
The objection may be urged that the judgment upon a general
demurrer in this case will be a good bar to any future suit brought
against the present defendant upon the same debt, or against him
and the other judgment debtor. We are of a different opinion as to
both, if the declaration be properly framed, for a judgment that a
declaration is bad in substance (which alone, and not matter of
form,
Page 35 U. S. 302
is the ground of a general demurrer) can never be pleaded as a
bar to a good declaration for the same cause of action. The
judgment is in no just sense a judgment upon the merits. If
authority be wanting for this position, it will be found in the
case of
Lampen v. Kedgewise, 1 Mod. 207, where to an
action in the nature of a conspiracy, the defendant pleaded a bad
plea, and judgment was in part rendered against the plaintiff for
the insufficiency of his declaration, but by mistake or design, the
judgment was entered that the plea was good, and
ideo
consideratum, instead of that the declaration was bad and
insufficient, and
ideo consideratum. Upon a second suit
for the same cause of action, the former judgment was pleaded and
upon demurrer held no bar. And the court held that notwithstanding
this mistake in the entry, if the plea was bad, it was no estoppel,
and the court accordingly took notice of the plea, and said upon
that matter, as it falls out to be good or otherwise, the second
action is maintainable or not. And judgment was accordingly given
nisi for the plaintiff, but if the judgment had been
properly rendered, that the declaration was insufficient, &c.,
there was no doubt that the former judgment was no bar.
But to avoid all possible difficulty on this point, in our own
judgment we shall state the cause for which the declaration is held
bad, so that it cannot be a bar to any suit properly brought on the
judgment.
The judgment of the circuit court is therefore
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
West Tennessee, and was argued by counsel, on consideration
whereof, inasmuch as it appears to the court that the declaration
and the matters therein contained are not sufficient in law for the
said Gilman to have or maintain his aforesaid action against the
said Rives, because it appears upon the declaration that there is
another joint judgment debtor, the said Lyne, who is not sued, nor
any reason assigned why he is not joined in the suit; therefore,
and for this cause it is considered by the court that the judgment
of the said circuit court be and hereby is affirmed with costs.
(a) See also the note of Messrs Pattison and Williams to the
last edition of Saunders. 1 Saund. 291, note (c).