
    
      Park v. Morrison’s Executors.
    
    A warrant, on an account, issued in this case against John and Robert Morrison, executors of Robert, deceased, William Morrison, the other executor, not being an inhabitant of this County. The magistrate rendered judgment for the plaintiff; and, on an appeal to the County Court, the defendant pleaded in abatement, that William Morrison, one of the executors, was not a party to the suit. The plaintiff replied, that he was an inhabitant of another County, and out of the reach of the process of a Justice of the Peace. To this replication there was a demurrer.
   Henderson, J.

delivered the opinion of the Court.

All general rules must be departed from in cases of necessity ; they are formed to meet ordinary cases only, but in extraordinary ones, we must resort to some other rule. Of the common law, it is a general rule, that where two or more persons are liable on a joint contract, they must be made defendants, and brought into Court; but the plaintiff is excused for omitting to do so, by shewing its impossibility. Accordingly, the course in England is to proceed to outlawry, and, in this state to the pluries writ. So if some of the executors reside in a foreign country, those who live here may be sued; and the same rule is applicable to defendants in equity. We can see no difference in principle between those cases, and the case of one executor residing without the jurisdiction of that tribunal, which has cognizance of the cause. We must, in this case, either depart from the general rule, or declare that the plaintiff has no remedy for the demand, being of a sum, within the jurisdiction of a magistrate, whose warrant runs not beyond the limits of his county. The defendants, by remaining in different counties, may, for ever prevent a trial. We are, therefore, very clearly of opinion, that the plea should be overruled, and the defendants answer over.  