
    Grymes v. Pendleton.
    [May, 1788.]
    Representatives of Two Testators — Joinder in Action.— The representatives of two deceased persons cannot be joined in the same action, although the undertaking- of the testators might have been joint and several.
    Pleading — Plea Necessary. — The want of a plea is fatal, although the jury were sworn to try the issue.
    Same — Same—Form of Reversal. — The form of the ■ judgment of reversal in such case is not in bar.
    Pendleton and Lyons, surviving administrators of John Robinson deceased, in April 1774, brought an action on the case, in the then general court, against Peyton Randolph, John Robinson and Benjamin Grymes, surviving executors of Philip Grymes deceased, and John Taylor and Francis Thornton, acting executors of Presley Thornton deceased; and declared, “for that whereas the said Philip Grymes and Presley Thbrnton, in their livestime, to wit, on the sixteenth day of June, one thousand seven hundred and fifty-seven, at the county aforesaid, in consideration that the said John Robinson, in his lifetime, would, at the special instance and request of the said Philip and Presley, lend and advance, to one Benjamin Grymes, so much money as he, the said Benjamin, should desire to borrow of him, the said John, they, the said Philip . and Presley, undertook and *then and there faithfully promised the said John Robinson.that they, the said Philip and Presley, would become jointly and severally bound, together with the said Benjamin Grymes, by bond, with condition for the repayment of all such money so to be lent, with interest, to the said John Robinson, his executors or administrators, whenever they, the said Philip and Presley,, should afterwards be thereunto required; and the said plaintiffs, in fact, say that the said John Robinson, in his. lifetime, trusting to the promise and undertaking of the said Philip and Presley, in form aforesaid made, did afterwards, to wit, ---th of June, in the year aforesaid, at the county aforesaid, and at divers-•, between the said seventeenth day of June and the twenty-fourth day of April, one thousand seven hundred and sixty-three, at the special instance and request of the said Philip and Presley, lend and advance, to the said Benjamin Grymes, divers sums of money, amounting, in the whole, to four thousand and eighteen pounds four shillings and eleven pence, current money; of which, the said Philip and Presley, on the day and year last mentioned, at the county aforesaid, had notice. Nevertheless, the said Philip and Presley, in their livestime, or the said defendants, (who are executors of the respective wills of the said Philip and Presley, as aforesaid,) since their respective deaths, although often required, have not, nor hath either of them entered into bond jointly and severally, with the said Benjamin Grymes, with condition for payment of the said four thousand and' eighteen pounds four shillings and eleven pence, to the said John Robinson, in his lifetime, or to the said plaintiffs, to whom, with 'Peter Randolph, esq., since deceased, administration of the estate of the said John Robinson, with his will annexed, hath been, in due form, committed, since his death; nor hath the said Philip and Presley, or the said defendants, or the said Benjamin Grymes, paid any part of the said sum of money, but such bond to enter into, and payment to make, have altogether refused,5 and the defendants still do refuse in delay of the execution of the will of the said John Robinson, and *to the damage of the said plaintiffs six thousand pounds, and thereof they bring suit, &c., and bring into court their letters of administration, &c.” The record, immediately afterwards, proceeds thus: “Whereupon came the said defendants, by their attorney, and thereupon came also a jury of the bystanders, to wit, &c.” Who found a verdict for the plaintiffs for ^2700 with interest upon several parts of it from sevéral days. And thereupon the record states that the parties agreed that four gentlemen, (naming them,) or any two, or more, of them, should “state and settle an account of the several payments that have been made in discharge of the said damages and make report thereof to the court, and that judgment be entered, in this suit, for what shall be reported due by them; and the same is ordered accordingly.”’
    The cause was continued from court to court, ‘ ‘for the said referees to return their report,” until March 1779, when the record proceeds thus, “at which day, came, as well the plaintiffs aforesaid, as the defendants John Taylor and Francis Thornton, by their attornies, and the former rule in this cause not being complied with, on the motion of the plaintiffs, It is ordered that the persons therein named do perform the same, at Williamsburg, on the fifteenth day of September next, ex parte, in case either party shall fail to attend them.” And the cause was continued until the October court following; when the record proceeds thus, “at which day came, as well the plaintiffs as the defendants, John Robinson and Francis Thornton, by their at tornies, the other defendants Peyton Randolph, Benjamin Grymes and John Taylor, being dead, and this suit, as to them, abated, and the former order, in this cause, not being complied with, is, on the motion of the plaintiffs, set aside, and thereupon it is considered, by the court, that the plaintiffs recover against the surviving defendants, two thousand seven hundred pounds, with interest upon one thousand and twenty-five pounds, part thereof to be computed after the rate of five per centum per annum, from the seventeenth day of June 1757, on one thousand six hundred pounds other part ^thereof, from the twenty-third day of July in the same year, and on seventy-five pounds the residue, from the first day of August in the same year, the damages in form aforesaid assessed, and their costs by them about their suit in this behalf expended, to be levied of the goods and chattels of the said Philip Grymes and Presley Thornton, in _ the hands of the said defendants to be administered, if so much thereof they have; but if not then the costs to be levied of their own proper goods and chattels, and the said defendants in mercy, &c.”
    The judgment was afterwards revived by a writ of scire facias; and, on the 8th of November, 1785, a writ of error was awarded by the court of appeals to the original judgment in October 1779.
    Several attempts appear by the record to have been made to establish, that there had been a plea filed in the suit, which had been, according to the loose practice of the das'-, and the subsequent confusion during the revolution, whereby the minute book and rule books had perished, been lost: But nothing satisfactory was obtained, after a strict scrutiny. And, therefore, the cause came on to be heard in the court of appeals, without any evidence of a plea, if one ever was, in fact, filed.
    Randolph, attorney general, for the plaintiffs in error contended
    That the judgment was erroneous, 1. Because the representatives of two distinct persons were joined in the same action. 2. Because there was no issue joined in the cause.
    John Taylor, for the defendants, contra
    That it was manifest from the whole complexion of the record, that there must have been a plea; which had been lost in the disasters of the times. That there was no misjoinder of defendants; for the undertaking was joint and several, and different judgments might be rendered against the defendants separately: which was the constant course in this country, even upon *bonds, where the writ was served upon the defendants at different times; for, in such cases, the course is to render final judgment against him that is brought before the court, and successively against the rest as they happen to be served. That this indeed was not the English practice, but custom had sanctified it here. That he himself had found the practice of a joint suit, against the representatives of several deceased persons, established, on his coming to the bar; and had. practised on it ever since, whenever the undertaking was joint and several, and the representatives ultimately, liable.
    The following judgment was this day rendered by the court of appeals in the cause, ‘ ‘The court having maturely considered the transcript of the record and the arguments of counsel, on both sides, are of opinion, that the said judgment is erroneous. Therefore,' it is considered by the court that the same be reversed and annulled. Which is ordered to be certified to the said general court.”
    
      
      PIeading and Practice — Joinder of Issue. — The principal case is cited, in Brown v. Cunningham, 23 W. Va. 111, and State v. Douglass, 20 W. Va. 777. for the proposition that, if a verdict has been rendered without any issue being joined, it is a mere nullity, and no judgment can properly be rendered upon it, whether it be in a civil or criminal action. See foot-note to Rowans v. Givens, 10 Gratt. 250; and monographic note on "Judgments” appended to Smith v. Charlton, 7 Gratt. 425, where a full collection of authorities on this subject will be found. See, upon the subject of the first headnote, mono-graphic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   Memorandum. — ‘The precise grounds of the judgment of the court of appeals in this case, are not known further, than what was said by judge Mercer, in the case of Tate v. Watkins, 3 Call, who says, that the court held, that the representatives of two deceased persons could not be joined in the same action. But, as, in a bill in equity, which was afterwards brought upon the same contract, the plaintiffs say, that there were various errors assumed, (these do not appear in the record, for the assignment of errors is lost,) which the plaintiffs are bound to consider as legal objections, since they were so adjudged by the court, although some of them were occasioned by the derangements and loss of papers in the time of the British invasion, it is probable that the court went upon the want of an issue also.  