
    A. J. Hammond and another vs. D. J. Walker and Thomas B. Reese.
    That the action is against two out of three joint contractors, is no ground for non-suit.
    Before GLOVER, J., at Edgefield, Maroh Term, 1868.
    This was an action of debt on a joint and several note, under seal, given by the defendants and one Joel Cany to John Jones, deceased, the testator of the plaintiffs. The pleas were, non est factum and failure of consideration.
    At the trial defendants’ counsel moved for a non-suit, on the ground that Cany should have been joined as a defendant in the action. It was said that he did not reside in the State, but that did not appear by the record, nor was it proved.
    
      His Honor granted the motion, and plaintiffs appealed, and now moved this Court to set aside the non-snit for error in the ruling of the Judge, that the non-joinder was ground of non-suit.
    
      Wright, for appellants.
    
      Addison, contra.
    April 27, 1869.
   The opinion of the Court was delivered by

Moses, C. J.

The action was against the defendants, who, with another, were the drawers of a joint and several note to the testator of the plaintiffs.

The pleas were, non est factum, and failure of consideration.

On the trial, a non-suit was granted for the non-joinder of the other drawer.

The motion is, to set aside the non-suit, on the ground that the objection should have been made by plea in abatement.

The exception is well taken, as a reference to the authorities will clearly show. When the contract is- several, as well as joint, the plaintiff is at liberty to proceed against the parties jointly, or each separately, though their interest be joint. But if there be more than two parties to a joint and several contract, as where three obligors are jointly and severally bound, the plaintiff must either sue them all jointty, or each of them separately; though, if two only be improperly sued, the objection should be taken by plea in abatement, or by writ of error, if the defect appear on record, and it is not a ground of non-suit. — 1 Chit. PL, 43, 46.

The practice in this State has conformed to this rule, and there has been no variance from it. The objection must be made by plea in abatement, and cannot prevail by way of non-suit. — Derrill vs. Charleston Steamboat Company, MS., Nov., 1826; Valentine vs. Gerard, 2 Rich., 9; Exum vs. Davis, 10 Rich., 357.

The motion to set aside the non-suit is granted.

Willard, A. J., concurred.  