
    
      v. HANSON et al.
    
    In actions upon joint and several contracts or obligations, an administrator cannot be joined with the survivor, because the one is joined de bonis testatoris, and the other de bonis propriis.
    
    Appeal from the District Court of the Tenth Judicial District, County of Yuba.
    This was an action against George M. Hanson, John C. Fall, and Samuel L. Dewey, administrator of the estate of B. B. Dewey, deceased, on an undertaking on appeal executed by G. M. Hanson, John C. Fall and B. B. Dewey. The complaint alleges the prosecution of the appeal in the action in which the bond was given, and final judgment against the appellant therein. It also avers the subsequent death of B. B. Dewey and the appointment of S. L. Dewey as his administrator.
    
      The defendants demurred to the complaint, on the ground, among others, “ that the defendant, Samuel L. Dewey, administrator of the estate of B. B. Dewey, deceased, is improperly joined in this action with the other obligors to said bond, being the surviving obligors of B. B. Dewey, deceased.
    The Court below sustained the demurrer, though not on the ground above stated. Plaintiff appealed.
    
      Charles Lindley for Appellant.
    The administrator of Dewey is properly joined as defendant. Prac. Act, §§ 4, 5, 13, 14,17, 559; Story’s Eq. Pl., §§ 169, 170; Madox v. Jackson, 3 Atk., 406; Augerstin v. Clark, 2 Dick., 738; Bland v. Winter, 1 Sim. and Stev., 246. Moreover, the demurrer was not sustained in the Court below on this ground.
    
      Field and Swezy for Respondent.
    The demurrer was well taken for the misjoinder of the administrator of Dewey with the surviving obligors. Humphreys v. Yale, April T., 1855. The undertaking being a joint obligation, only the survivors can be sued on it. Grant v. Shurter, 1 Wend., 150.
   The opinion of the Court was delivered by Mr. Chief Justice Murray.

Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.

The demurrer was properly sustained upon the second ground, because the administrator of Dewey ought not to have been joined.

In actions upon joint and several contracts or obligations, an administrator cannot be joined with the survivor, because one is joined de bonis testatoris, and the other de bonis propriis. Humphreys v. Yale, 5 Cal. R.

It is said the demurrer was sustained on a different ground in the Court below. It makes no difference, as this was one of the causes of demurrer assigned below.

Judgment affirmed.  