
    
      S. Valentine vs. Mary Gerard.
    
    in debt on judgment, the nonjoinder of a defendant is not ground for a non-suit. It should be pleaded in abatement, 
    
    
      Before Butler, J. at Williamsburg, Fall Term, 1845.
    Debt on a judgment recovered.against the defendant and William Cox. The action' was against the defendant alone. His Honor overruled a motion for a non-suit, and the defendant appealed, and now renewed his motion on the following grounds:
    1. That the declaration set out a recovery by judgment against Mary Gérard alone, whereas by the exemplification in evidence it appeared that the judgment was against Mary Gerard and William Cox.
    2. That the cause of action being a judgment against Mary Gerard and William Cox, the plaintilf should have sued both parties, and suggested in the declaration that William Cox was absent from and without the limits of the State.
    
      N. Phillips, for the motion.
    ' Hunt and Atkinson, contra.
    
      
       Vide Rice vs. Shute, 1 Smith L. C. (American Edition) 391, and Cabell vs. Vaughan, 1 Wms Saund. 291.
    
   Curia, per Butler, J.

This is a case in which there was a joint liability against two on judgment, and upon which one party alone has been sued. From the record itself, it appeared that the judgment was joint, with an averment of a several liability. The party sued moved for a non-suit, mainly on the ground that the other party should havé been joined for conformity, with~a suggestion of his absence, for the purpose of preserving original liabilities.

It is clear that this motion’was not the proper mode of taking advantage of the omission, but'that it should have been done by a plea in abatement. Motion refused.

Richardson, O’Neall, Evans, Wardlaw and Frost, JJ. concurred.  