
    O’Bannon et al. vs Simrall et al.
    
    Debt, Case 89,
    Error to the Shelby Circuit.
    
      May 15.
    
      Obligor and obligee Confusion of parties.
    
    The case and pleadings of the parties.
   Chief Justice Robertson

delivered the Opinion of the Court.

In an action of debt by J. B. & R. W. O’Bannon against Minor W. O’Bannon and William A. Simrall, (trading in the style of “O’Bannon & Simrall,”) upon a promissory note purporting to have been executed by said Simrall, in the name of “O’Bannon & Simrall,” to Minor W. O’Bannon, and assigned by him to the plaintiffs in the action, the Circuit Judge overruled demurrers to two pleas in bar, one by both defendants and the other by Simrall alone, each averring substantially the same matter, and that is, that O’Bannon the partner, and one of the defendants and apparent obligors, and 1/1. W.' O’Bannon the obligee and'assignor, are one and the same person, and that, therefore, the note to himself imposed on him no legal obligation.

Obligee having; signed a bond to himself as apparent obligor with another, will not 'destroy the right of action against the otherobligor; a bond by two ■(partners) to one of them as obligee may be obligatory on the other partner.

T. P. Wilson for plaintiffs: M. D, McHenry for defendants.

The correctness of the judgment on those demurrers is the only matter presented for revision, and the only question we doom it necessary to decide is, whether, admitting that the assignees harm no cause of action against M. W. O’Bannon, the pleas are sufficient to bar the action as brought.

It is well settled here, that in a joint action against all the apparent obligors in a bond, the fact that one of them was never legally liable, in fact or in law, will not defeat the action as to the others; and this Court has decided that a bond by two partners to one of them, may be legally obligatory upon him who is not the obligee. Hence, as Simrall could not bar the action as to himself, on the ground that his co-defendant and apparent co-obligor was never legally bound, the joint plea is not good.

And as to the several plea by Simrall, were it even conceded that the fact pleaded might abate the- action as to him, it is insufficient as matter of bar.

Therefore, the judgment on the demurrers to the picas is considered to be erroneous; and consequently, the final judgment in bar of the action, in consequence of a refusal to reply to those pleas, is also erroneous.

As we are inclined to presume that the joint plea was not filed at the instance of O’Bannon, we will not now decide whether he would be estopped, by his assignment or otherwise, from relying, in a several plea, on the mat ter thus improperly pleaded jointly.

Wherefore, the judgment is reversed and the causo remanded, with instructions to sustain the demurrer to each of the pleas in bar.  