
    Alexander Henderson et al. vs. Joseph H. Talbert, Trustee.
    In an action against two or more obligors- in a writing obligatory, if one die pending the suit, the action may be revived against the representative of the deceased obligor, and proceed thus revived against such representative and the survivors jointly, and judgment accordingly be jointly rendered against them.
    On a writing obligatory signed by two or more, if one of the obligors be dead, a joint suit may be prosecuted against the survivors and the representative of such deceased obligor.
    In error from the Marshall circuit court.
    At the November term, 1841, of the court, Joseph H. Tal-bert sued A. Henderson, R. W. Thomas, and W. V. Taylor, in an action of debt on two bills single, of one of which, the following is a copy; viz.:
    $1087. On or before the 28th August next, we promise to pay Joseph H. Talbert, trustee of John G. Chalmers, or order, one thousand and eighty seven dollars, at the branch of the Union Bank of the state of Tennessee at Jackson, for value received ; as witness our hands and seals this 6th November, 1839.
    A. Henderson, [Seal.]
    R. W. Thomas, [Seal.]
    W. V. Taylor, [Seal.]
    At the March term, 1842, the death of the defendant Thomas was suggested; and a revival ordered by scire facias, against his administratrix, Ann W. Thomas; upon the service of which, and no appearance being entered, judgment was rendered in these words, viz.:
    “ September 5th, 1843; this day came the plaintiff by his attorney, and the defendants came not, but made default; it is therefore considered by the court, that the plaintiff recover of the defendants, twenty-one hundred and seventy-four dollars, the debt in the declaration mentioned; also, four hundred and thirty-two dollars and eighteen cents damages for the detention of said debt, to be levied as well of the goods and chattels, rights and credits of R. W. Thomas deceased, in the hands of his administratrix, the said Ann W. Thomas, as of the goods and chattels, lands and tenements of the said A. Henderson, a n dW. Y. Taylor; and the costs in this behalf expended.”
    Feeling herself aggrieved in her representative character by this judgment, Mrs. Thomas removed the case by writ of error to this court.
    
      A. C. Baine, for plaintiff in error.
    The error complained of in this case, is in the judgment itself. It will be seen by a reference to it, that it is a judgment against three parties, but not against.the three original defendants.
    One defendant died during the pendency of the suit and before judgment.
    A scire facias issued to bring in the personal representative of the deceased, and when that was returned into court, a judgment was jointly rendered against the two surviving and original defendants, together with the representative so brought in on scire facias. This is certainly erroneous.
   Mr. Justice Thacher

delivered the opinion of the court.

Writ of error to Marshall county circuit court.

This action was instituted against three obligors in a writing obligatory. After suit was instituted and before judgment, one of the obligors died, and thereupon a scire facias issued directed against the administratrix of the deceased obligor, which having been duly served, a judgment was jointly rendered against the survivors and the administratrix of the deceased obligor. This is claimed to be error.

The statute H. & H. 578, s. 8, declares that upon the death of one or more joint obligors, the joint debt or contract shall and may survive against the heirs, executors and administrators of the deceased obligors, as well as against the survivor or survivors. A statute, similar in all respects, exists in North Carolina, and in Smith v. Fagan et al. 2 Dev. 362, the court says, that the question had several times been debated, whether in the case of obligations, a joint suit could be maintained against the surviving obligor, and the executor of a dead one, it being contended that a several action survived against each ; but the courts considering it a remedial law, and putting a fair construction upon it, held affirmatively. Brown v. Clary, 1 Hay. 107; Davis v. Wilkinson, Ib. 334. For similar reasons, and because it seems to be the policy of our legislation, manifested by various statutes, to diminish the number of suits in the course of litigation, we are inclined to give a similar construction to our own statute.

Judgment affirmed.  