
    Thompson and Price v. Elliott.
    1. Petition and summons against three joint obligors — plea, nonest factum bv two, without affidavit — under this plea, it cannot be proved that the name of the third obligor (who was not served with process,) was not Stephen, as described in the declaration, but Samuel. This objection could only be made available by plea in abatement.
    2. Quere. Where a bond creditor gives further time to the principal, without consent of the security, what delay would release the security, either in law or equity, if the security has failed m avail himself of the remedy provided in our statute, by giving written notice, &c.l
    
      Wilson and Todd, for appellants:
    The plaintiffs in this court have assigned for error the several points made before the court below, in the progress of the cause, and rely for a reversal on some one or all of them.
    1. They insist that their second plea was a good plea in bar, and that the demurrer of the plaintiff ought to be overruled; and cite the following authorties — 17 John. Rep. 384; 2 John. C. Rep. 554; 7 John. Rep. 332; 3 vol. Mo. Decisions, 95, State to use of Snell v. Reynolds, t. '*» and United States-v. Hillegas’ e^prs. C. C. Oct. 181 í, Mss. Reports; 3 Binn. Rep. 520,.' Commissioners of Barns v. Ross; 3 Starkie’s E-v. 13,¡8-§jJand notes and an-thorities there cited. ■'
    2. That the codrt ought to- hs^e- compelled the plaintiff to answer the bill of discovefjr*presented' by the defendants, Thompson and Price, and cite as follows — Statute Laws Mo. 462^3; 4 T. Rep. 611, Gordon v. Austin and others; 3 Bos. & Puller, 55-9, Whitehall v. Bennett.
    3. That the court, on the trial of the issue joined on the plea of non est factum, erred in refusing to permit the defendants to prove that the name of Porter was not Stephen but Samuel, and cite the same as cited under 2d-point.
    4. That the court erred in refusing a- new trial.-
    
      Leonard and Clark, for appellee:
    In support of thé judgmentythe' following points and authorities will be insisted upon by the counsel for the appellee:-
    First point. The matter set up in the special plea is-no bar to a recovery at law, because,
    1. This agreement is-purely voluntary, and therefore not obligatory upon the plaintiff; and for this reason no discharge in equity of the liability of the sureties, nauch less in* law — McLemore v. Powell, 6 Peter’s U. S. Coñd. Rep. 636.
    A mere delay on the part of the creditor to exact payment on the day is,-according to all the cases, no discharge of the sureties, and a voluntary agreement to wait, is nothing more, in point of legal effect — Craugh--ton v. Duval, Call R. 69; King v. Baldwin, 2 John. Chan. Rep. 554; Rees v. Berrington, 2 Yes. jr. 539, and eases cited in note l,to that case; Hunt v. The United States, 1 Gallison’s Rep. 33.
    2. Admitting such an agreement to be equivalent to an. obligatory contract, and therefore a discharge in equity, yet it is no bar at law. The Trent Navigation Company v. Harley, 10 East, 40; Rees v. Berrington, 2 Yes. jr. 539-, and note 1 to that case; Dehuffv. Tarbut, 3 Yates’Rep. 157; Commonwealth v. Woolburt et al., 6 Binney, 300; Opinion of Chancellor in King v. Baldwin, 2 John. Chan. R. 554; Opinion of Judge Cooper, Coop* er’s Justinian, 463.
    The following New York cases, it is admitted, advance a different doctrine, but no other cases to this effect, it is believed, can be found either in the English or American books — Payme v. Packard, 13 John. R. 174.; King v. Baldwin, 17 John. R. 384.
    Second point. TKie evidence tendered by the defendants upon the issue t, alien upon the plea of non est factum, was properly rejected, be'cause,
    l. It neither established any legal variance between the contract set out in the petition and that relied upon in evidence — Dickerson v. Bowes, 16 East, 110; Gilbert's Law of Evi. 157; Co. Lit. 283, a; 2 Starkie’s Law of Ev. 478, 149, 150; nor any legal bar to the plaintiff’s right of recovery in the present action. It was no de-fence for the defendants, Thompson and Price, that the bond sued upon was not the deed of their original co-defendant, Porter; nor could they have pleaded this matter in bar of the present suit--Isaac and Robb v. Porter et al, 2 Marsh. Rep. 452; J. and D. M’cGowen v. J. Mc-Coun, 3 Marsh. R. 151; Gilbert’s Law of Evidence, 144; 1 Saund.Rep. 291.
    2. This suit having abated as to Porter, by the mere operation of law, for’ want of the service of process upon him, all the allegations in .the petition which apply exclusively to him ought now to be rejected as immaterial; and the plaintiff ought not to be required to prove them, nor prejudiced by any variance between them and the evidence.
    3. This evidence was wholly irrelevant to the issue. - The question of fact, submitted by this issue to the jury, was simply whether the bond sued upon was the deed of the defendants, Thompson and Price, and not whether it was their deed, and also the deed of their original co-defendant, Porter — Smith v. Tanner, 2 Tount. Rep. 254. And it might perhaps be insisted that this evidence was contrary to the implied admission upon the record im volved in the omission to verify the plea by affidavit.
    Third point. The discovery prayed for was properly rejected. If the fact sought to be discovered was immaterial, upon the trial of the- cause,, the defendants showed no title to the discovery, and it was therefore properly disallowed.
   McGirk, Judge,

delivered the opinion of the court.

Elliott brought a suit by petition and summons against Thompson, Price, and one S. T. Porter, in the circuit court of Howard county, to the July term, 1837.

The petition states that Elliott is the holder of a bond against Stephen T. Porter, Asa Q,. Thompson, and Evans Price, to the following effect, to wit: “On or before the first day of December next, we or either of us promise to pay N. G. Elliott the sum of two thousand seven hundred dollars. Witness our hands and seals;” signed S. T. Porter, A. Q,. Thompson, Evans Price, and sealed by each. The sheriff returned to the writ of summons served on Thompson and Price, and not found as to Porter. The defendants, Thompson and Price, appeared, craved oyer of the bond, and jointly pleaded non est factum to the same, without supporting the same by affidavit. On this plea issue was taken to the country. The defendants for a second plea, pleaded, that after the bond became due the plaintiff agreed with S. T. Porter to give him further time on the same, which w.as done; and that Porter was the pi’incipal in the bond, and they were only securities, whereby they became discharged. This plea was demurred to. The court sustained the demurrer. After the appearance of the parties, and the pleadings as above stated, the plaintiff' dismissed the suit as to Porter. The defendants filed, in pursuance of the statute, a bill for a discovery, alleging in the same that the -said S. T. Porter’s name was Samuel and not Stephen, as alleged in the summons and petition of the plaintiff. The plaintiff demurred to the bill. The court sustained the demurrer. The cause was then submitted to the court, sitting as a jury, and the court found the issue of non est factum against the defendants. To support the issue, the plaintiff' read his note m evidence. The defendant then offered to prove that the name of the defendant, Porter, was Samuel T. Porter, and not Stephen T. Porter, .as stated in the petition and summons of the plaintiff', which evidence was excluded by the-court. The court then found the issue of non est factum against the defendants, Thompson and Price.

The appellants, Thompson and Price, make and rely on the following points to reverse the judgment of the circuit court:

1. That the court erred in overruling the 2d plea. In support of this, Mr. Wilson, of Fayette, cites 17 John. R. 354; 2 John. C. R. 554; 7 J. R. 332; 3 vol. Mo. R. 95; besides many others.

2. The court ought to have compelled the plaintiff to answer to the bill of discovery, and he cites for this, Statutes of Mo. 462-3; 4 T. R. 611, Gordon v. Austin et al.; 3 Bos. & Pul. 559.

3. The court erred in rejecting the testimony offered by the defendants. To support this, the counsel relie» on the authorities cited in- 2d point.

Petition and summons against three joint obli-gors — plea, non withoutin'affidavit —under this plea, cdThaTthe'5 name of the third obli-gor (who was not served with pro-phen, aa described m the declaration, but Samuel. This onlyTe'mnde sYailabie by plea in abatement.

4. The court erred in refusing a new trial. Accor-<hng to my view, there is but one point in this case, which is this: Can the defendant, where he has pleaded a pieíj jn bar? pUrely as- such, giv.efin evidence to support th'A plea mere matter in abatement? In this case, the plea >a bar is non est factum. The plaintiff produced his bond, and it agrees in every particular with his petition. The petition says that Stephen T. Porter made bis bond by the name of S. T. Porter; the bond produced is signed S. T. Porter. This stands for Stephen prima facie, and is good enough even against Porter himself, unless he will plead that his name is Samuel and not Stephen.-'

It is laid down in first Chitty on Pleading, 281-2, that m no case can a misnomer, (even of one of severalde-fendants,)-in an action- on a promissory note, or other written instrument, be pleaded in bar. This I take to be the law. I then hold, that if the misnomer of a defendant can- never be pleaded in bar, it must be true that evidence of the misnomer can never be set up to support any plea which isa plea in bar. In page 282 of the same book, it is said that the misnomer of the plaintiff may be pleaded in abatement; though it cannot be pleaded in bar, even in the case of a corporation. But the-counsel still insist, that the name of Stephen is to be considered as matter of description, and if the description is wrong there is a variance, and this is good for the defendants, Thompson and Price,on their pieas of nonest factum- Chitty, m the last page mentioned, does say that a misnomer,in the name of a third person in matter of description, is sometimes fatal as a variance. But I will proceed to show that the misnomer here,(if Porter’s name really be Samuel,) is not considered as matter of description, nor can it be made available for these defendants in bar or abatement. In first Chitty’s Plea. 486, it is said, that the misnomer of one of several plaintiffs may be pleaded in abatement. Misnomer of the defendant must also be pleaded in abatement; but misnomer of another defendant cannot be pleaded by bis companion. In Phillips’ Evidence, 132, it is said, in regard to the general issue in- assumpsit: “Nor will the defendant be allowed to prove under the general issue that the contract was not with himself alone, as stated in1 the declaration, but jointly, with other persons still living; for proof that another contracted, is not evidence that the defendant himself did not contract. Such an objection can only avail when the fact is pleaded in abatement. And although it should appear, on the evidence produced on the part of the- plaintiff, that Other persons are liable as joint contractors with the defendant, this is no variance. ” Then the author proceeds to say: “The rule which has just been laid down with respect to joint contracts, either written or unwritten, applies also to the case of joint bonds. If an action is brought against one obligor alone, who pleads non est factum, the plaintiff may maintain his action, notwithstanding that, on the production of the bond, there appears to be a joint obligor; and although the bond is declared on as the joint bond of the defendant and two other persons, it will be sufficient to prove the execution by the defendant alone. ”

Q.uere. Where a b°ye^f”fkg0rrt¡me 'principal, without consent °/h^secunty,^ Ieieaaseethe security, either in law °gCe^Jty¿Jg ed^ufavaü himself of the reme- ^ gWing wriueii notice, &c. %

These authorities, and particularly the last, are strong to the point in hand. In the last case, the description of the bond was, that it was the joint bondof A,B and C, and the proof was that it was the bond of A, and here the proof stopped short. This was holden to be the real question to be tried, and the plaintiff had judgment. If, in this case, the plaintiff was entitled to judgment, though he did not prove the allegation; that the bond was the joint bond of A, B and C; how can it be, that in the case at bar, the plaintiff cannot have judgment, if the defendant can prove that the name oí one of the makers is Samuel and notStephen; especially,too, when there is no issue on the record regarding the third person in any way? This view,in my opinion, disposes of the case with regard to the proof rejected; and it also disposes of the question arising on the bill of discovery, as that bill only sought testimony similar to that rejected-

The record,however, presents the question, what shall be done where a bond creditor gives further time to the principal debtor, without the consent of the security 1 By our statute, in such a case, the security may request the creditor, in writing, to proceed, and if he will not, then the security will be discharged; but at common law there is no such rule. It may be that;.in- equity, and perhaps at law too, a delay, so that insolvency might inter-rene, might produce some defence to the security'. But however that matter may be, no such case is made out ¡/fere. Thére is, therefore, nothing in this point. I am therefore of opinion that the judgment of the circuit court ought to be affirmed; and Judge Edwards concur-ing herein, the same is affirmed.  