
    Sweigart against Berk and others.
    obiigei s jointsewiTof* whr'naiu’re living, cMn.wt be supposed. If a bond be given to ten
    
    In Error.
    ON the trial of this cause, in the Common Pleas of Laru caster county, the .counsellor the plaintiff in error excepted to the opinion of the Court on several points, which ¡were afterwards discussed on the argument here. It is. 'unnecessary, however, to do more than state the fac(»s'connected wjt^ t[le oniy exception on which this. Court delivered their opinion. , .J. -:-h ■ •"
    
    The defendants in error, John^p&r.rre.. Peter, Adam, Daniel, and David Berk± and Jacob ¿Prey,, and Catherine, his wife, brought an actioflToT’Jebt against the pl'aintiff in error, John Sweigart, on a bond-in the penalty of two thousand pounds, given by Szveigart to “ the widow and heirs, and legal representatives of Peter Berk, deceased,” with condition underwritten, that the said bond should be void, “ if the said Sweigart should pay to the said widow, and heirs, and legal representatives of the said Peter Berk, one thousand pounds, gold or silver coin, lawful money of Pennsylvania, at or immediately after the death of Margaret Berk, widow of the said Peter Berk, deceased, or to the said deceased’s heirs and representatives, in equal shares alike, .with lawful interest for the same, to be paid annually unto the said Margaret Berk, during her natural life, on the first day of April, yearly, from the 1st day of April, last past.” This bond bore date on the 1st May, 1812, The plaintiffs did not file a declaration, but a statement of their cause of action, under the Act of Assembly of 21st March, 1806, in which, they averred “ that the said Peter Berk, deceased, at the time of his death, and at the execution of the said bond, had ten children, who were, and now are, his legal representatives, and, that the plaintiffs, aré seven of the said children, and are entitled to one hundred pounds, each, of the said one thousand pounds, with interest from the 6th February, 1816, which is claimed in this suit: and the plaintiffs aver that the widow of the said deceased Peter Berk, died the 5th February, 1816, of which, the defendant there and then, had full notice.” ^
    
    Among the points submitted to the Court of Common Pleas, for their opinion, was the following:
    That the plaintiffs being but seven of the ten obligees mentioned in the bond on which the suit was brought, who were all alive at the time of its institution, the action could not be maintained.
    The Court were of opinion, that the suit was well brought, and that opinion was one of the errors assigned.
    Buchanan, for the plaintiff in error,
    insisted, that all the obligees named in the bond, should have joined in the suit. If, it appear on the record, that there are obligees who are not made plaintiffs, it is fatal on demurrer, or on motion in arrest of judgment. 1 Sound. 154. (note.) Id. 291. (note.f.) 1 Chitty Pl. 7.
    
    Hopkins, for the defendants in error,
    contended:
    1. That the action might be maintained at common law.
    2. That it might be maintained under the Act of 21st March, 1806.
    1. The record shews that the interest of the obligees was several. As many as pleased, therefore, might unite in bringing the suit. If it must be brought jointly, it would be in the power of any one, by giving a release to bar all. 1 Chitty Pl. 5, 6. 9. Bill of debt to A. whereby B. acknowledges to have received forty pounds to be paid to C. and D. equally. C. and D. may each sue for twenty pounds. Yelv. 23. Where the defendant covenanted, that he would not agree for taking the farm of the excise of beer and ale, for the county of York, without the consent of the plaintiff and another,, it was held, that each of the covenantees might maintain an action for his particular damages. Wilkinson v. Lloyd, 2 Mod. 82.
    If, however, the suit is improperly brought, the only mode ©f taking advantage of the error was by plea in abatement. If one joint-tenant, or joint-merchant, sue, and it be not pleaded in abatement, no advantage can be taken of it in evidence, 1 Salk. 290. 2 Saund. 116. So, if a suit be brought against two of three joint and several obligors, it musí be taken ad» vantage of' by plea in abatement, 1 Saund. 291, (note e.) If, the defect in the manner of bringing the suit, might have been pleaded in abatement, it is a rule that it cannot be assigned for error. 2 Bac. Ab. 492. 3 Bac. Ab. 708. 5 Co. 119.
    The defendant having paid three of the obligees, and thereby put it out of the power of the plaintiffs to sue in the name of all, the action must be maintainable by those who remain unpaid, or they would be without remedy. They could not compel the others to join, nor could the plaintiffs be summoned and severed. To prevent a failure of justice, therefore, those whose proportions have not been paid, must be entitled to sue. This course of proceeding is supported by authority j for, where there is a joint interest, and two out of three have been paid their claims, it is laid down, that the third may sue alone. 1 Chitty Pl. 6. So, where one is answerable in a personal action to two or more, and settles with one, the others may maintain suit. 6 Mass. Rep. 260. 1 Com. Dig. 10. Abatement E. 8, 9, 10.
    On another ground, the judgment is not reversible. A party cannot assign for error, that which is for his own benefit ; and it was obviously the interest of the defendant, to be thus sued, as it saved costs. 5 Johns. 353. 8 Johns. 75.
    
    2. But, if the strict rules of the common law, are opposed to the manner in which the present action is brought, it may be supported upon the Act of 21st March, 1806, 4 Sm. L. 326, according to the provisions of which, a statement was filed, instead of a declaration. The object of this Act, 'which has always received a liberal construction, was, to attaip substantial justice, by discarding all technical niceties, and to enable the parties to go to trial upon their own statements, unembarrassed by form. It has, therefore, been decided, that a formal joinder of issue, is unnecessary. Cunningham v. Day, 2 Serg. & Rawle, 3. Riddle v. Stevens, Id. 544. Jordan v. Cooper, 3 Serg. & Rawle. 577. Such being the character of the statement Act, it would certainly be a violation of its spirit, to apply to the present suit, so rigid a rule as that contended for, by the plaintiff in error.
    
      The Court did not hear Buchanan, in reply.
   Tilghman C. J.

(after stating the case,) delivered the opinion of the Court, as follows:—

It appears by the plaintiff’s own shewing that the bond was given to ten obligees jointly, all of whom are living, and the action is brought by only seven of them. I am at a loss to conceive, on what principle the action can be supported. It is well settled., that if a bond be given to several obligees,! they must all join in the action, unless some be dead, in which case that fact should be averred in the declaration. And if it appear on the face of the pleadings, that there are other obligees living, who have not joined in the action, it is fatal, on demurrer, or in arrest of judgment. The autjiorities to this point are numerous, and "will be found collected in 1 Sound. 291. f. The counsel for the plaintiffs has urged the inconvenience .of this principle, when applied to the bond in suit, where it appears by the condition, that ten persons have separate interests, and it may.be that some of them have received their shares, before the commencement of this suit. There is very little weight in that argument. The' acceptance of the bond, was the voluntary act of the obligees, and if people will enter into contracts which are attended with difficulties, they have no right to expect that established principles of law are to be prostrated, for their accommodation. But in truth, there is very, little difficulty in the case. The action may be brought on the. penalty of the bond, in the name of all the obligees, and the judgment entered in such a manner as to secure the separate interest of each. The action may be supported, although some of the obligees have received their shares, because the bond is forfeited, unless they have all been paid. It was objected, that those who had been paid, might refuse to join in the action, or might release the obligor. But the Court would permit those who were unpaid, to make use of the names of the other obligees against their consent; neither would their release be suffered to be set up, in bar of the action. It may be resembled to the case of an assigned chose inaction, where the action is brought in the name of the assignor, for the use of the assignee ; there the release of the assignor would not be regarded. A release in such case, would be a collusion between the assignor and assignee to defraud a third person, an(j t|jerefore Void. It is unnecessary to decide, whether each tbe ob^Sees tbe present case, could have supported a separate action for his separate interest, appearing on the ^ace °fthe condition. I will only say, that such an action would be hazardous. But this action has not been brought for the separate interest of any one. Seven of the obligees have joined in it. So that it is neither joint, nor several, On no principle, therefore,, can the action be supported. There were several other points discussed in the argument, on which the Court will give no opinion. The judgment of the Court of Common Pleas must be reversed, and restitution is awarded.

Judgment reversed, and restitution awarded» -  