
    Hollingsworth v. Dunbar.
    Thursday, March 19th, 1812.
    a. Covenant — Action of — Evidence.—in an action of covenant the declaration describing the covenant as sealed, by the defendant, without mentioning any other person; and the plea being “covenants performed;” though without praying oyer; a joint and several covenant, sealed by the defendants, and others, but in other respects answering to the description in the declaration is admissible as evidence to the j ury.
    See Meredith’s administratrix v. Duval, 1 Munf. 79, 82; winslow and others v. The Commonwealth, 2 H. & M. 459, 465, and Cabell v. Vaughan, 1 Saunders, 288-291; and the notes to that case by Sergeant Williams.
    
    This was an action for covenant broken, brought by the appellants against the ap-pellee in the District Court of Fred-ericksburg. The declaration set forth a covenant, bearing date the 3d of March, 1803, sealed by Robert Dunbar; without mentioning that any other person had sealed it. The pleas were, “not guilty,” and “covenants performed;” but oyer was not prayed. At the trial, the deed produced, (being of the same date aforesaid,) was one from Francis Thornton and Sarah his wife, Robert Dunbar and Elizabeth his wife, in which they and each of them covenanted, that they and each of them, their, and each of their heirs, &c. would perform certain stipulations corresponding with those set forth in the declaration; which deed was acknowledged by all the parties, and recorded. To the admission of the said deed as evidence to the jury, the defendant objected; and the Court, upon his motion, excluded the same; whereupon the plaintiff filed a bill of exceptions, and (a verdict and judgment being rendered against him) appealed to this Court.
    Williams, for the appellants, observed that, the covenant, being joint and several, was improperly rejected by the court.
    No counsel appeared for the appellee.
    
      
      Joint Obligation — Suit against One Obligor — Plea in Abatement. — It seems to be now settled that in all cases of a joint obligation or deed, or a joint contract in writing or by parol or ex quasi contractu, if one only be sued, he must plead the matter In abatement and cannot take advantage of it afterwards upon any other plea or in arrest of judgment or give it in evidence. Reynolds v. Hurst, 18 W. Va. 654, 655, citing principal case. See monographic note to "Abatement, Pleas in” appended to warren v. Saunders, 27 Gratt. 259.
    
    
      
      Note. In Cabell v. Vaughan, 1 Saunders, 288, the declaration (as in this case) described the bonds as sealed by Vaughan, the defendant; sayingnothing about any other obligors. Oyer was prayed; and the bonds appeared to have been sealed by two other persons, who bound themselves jointly; and not jointly and severally; but as the defendant did not plead, in abatement, “that such was the fact, and that the other obligors were still alive,” a general demurrer to the declaration was overruled, and judgment entered for the plaintiff. — Note in Original Edition.
    
   Monday, March 23d, the following opinion of this Court was delivered by

JUDGE ROANE.

“This Court, being of opinion that the Court below erred in withholding from the jury the covenant in the bill of exceptions contained, reverses the judgment with costs, and awards a new trial, in which the said judgment is to be permitted to go in evidence.”  