Benjamin Gilman, Plaintiff In Error v. Peter Rives

• Decision Date: 01 January 1836
• Citation: 9 L.Ed. 432,35 U.S. 298,10 Pet. 298
• Parties: BENJAMIN I. GILMAN, PLAINTIFF IN ERROR v. PETER G. RIVES
• Court: U.S. Supreme Court

35 U.S. 298

10 Pet. 298

9 L.Ed. 432

BENJAMIN I. GILMAN, PLAINTIFF IN ERROR v. PETER G. RIVES.

January Term, 1836

IN error to the circuit court of the United States for the district of west Tennessee.

The case is stated at large in the opinion of the court.

Mr Justice STORY delivered the opinion of the Court.

This a writ of error to the circuit court for the district of west Tennessee.

The plaintiff in error, Gilman, brought an action of debt against the defendant in error, Rives, upon a joint judgment rendered in his favour 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, Jun., 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 said Peter G. Rives and one Leonard H. Lyne the sum of 6860 dollars, then and there adjudged to the said B. I. Gilman, Jun. for his damages, which he had sustained by reason of the non-performance 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, Jun., to demand and have of the defendant the said sum of 6860 dollars 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 favour 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 non-joinder of Lyne, as a co-defendant, 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 suit; and the plaintiff may be compelled to join them all, by a plea in abatement for the non-joinder. 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. Rep. 119; and in Cabell v. Vaughan, 1 Saund. Rep. 291; and that doctrine has been constantly referred to ever since; and was fully confirmed in Rice v. Shute, 5 Burr. Rep. 2611. But if it should appear upon the face of the declaration, or other pleading of the plaintiff,...