
    Morgan vs. Crimm.
    Error to the Payette Circuit; William Warren, Judge.
    Covenant.
    Cts6 55
    October 16.
    
      Parties, Pleading by Defendant, Demurrer, Abatement.,
    
    where oneor more of sev-eral j°mt without join-inS the °th-tal’^cannót be taken of it by demurrer; onh^by p°ea in abatement,
   Opinion of the Court, by

Ch. J. Boyle.

THIS is a wriloferror to a judgment for the defendant, upon a demurrer to the declaration in an action of covenant. The declaration undoubtedly contains the necessary averments to make out a good cause of action against the defendant; but the action • was brought against him alone, and it appears from the covenant declared on, of which oyer was granted, that Jacob Crimm was a joint covenantor with the defendant, and it is supposed that the failure to sue him jointly with the defendant, is the ground upon which the demurrer to the declaration was sustained. But this ground is clearly untenable. Most clearly, all the joint contractors ought to be joined in an action upon a contract, whether it be by parol or by specialty; but it, is well settled, that where one or more of several joint contractors are sued, without sueing the others, advantage-can be taken of it only by plea in abatement. 1 Sanders 154, note 1; ibid 291, note 4.

Wickliffc, for plaintiff; Hoggin., for defendant.

The judgment reversed with costs, and the cause remanded, for further proceedings to be bad, not inconsistent herewith.  