
    Trustees of McMinn Academy vs. Reneau et als.
    
    Action. Joinder of Parties. Since our statute which makes all joint contracts, in effect, joint and several, and permits the plaintiff to proceed against so , many of the parties or obligors as he may think proper, the plaintiff may sue upon several bonds jointly those who are obligors in each of the several bonds although there may be other obligors, some of whom have signed one bond and some another.
    Misnomer. Corporation. Where a bond has been executed to a corporation by a name varying from the true name, the corporation may sue in its true name, and aver the execution to the bond to it.
    This was an action of debt instituted in the circuit court of Hawkins county by the Trustees of McMinn Academy against Keneau, George K. Powell and Wm. Miller, upon two bonds executed by Keneau as Treasurer of the .Board of the Academy, the one in 1843, with George K. Powell, W. D. Kenner and Wm. Miller as his sureties; the other in 1844, with Geo. K. Powell, Wm. Miller, J. Miller and H. Tartar as his sureties. To the declaration the defendants pleaded in abatement and the plaintiff demurred thereto. The court sustained the demurrer as to the declaration and gave judgment for the defendants, from wbicli tbe plaintiffs appealed in error.
    ELeisKell, for plaintiffs in errror,
    argued: There is no misjoinder of parties, for the parties are the same in all the counts.
    There is no misjoinder of causes of action. Different causes may be joined in the same declaration, where the same plea may be pleaded, and the same judgment given in all, or where the counts are of the same nature, and the same judgment may be given on all. 1 Chitty, 200, stated to be a universal rule; 1 D. & E., 274, cited in 2 Saund., 117, note 2; and Union Gotton Manufac-turmg Gomjxmy vs. Lobdel et ais., 13 Johns. 462.
    The universality of the rule questioned in Gould on PL, ch. 4, § 92; 1 Tidd’s Pr., 12; but the instances given, and the grounds taken do not cover this case.
    But different causes of action in debt, may be joined as debt on record, specialty and simple contract. 1 Tidd Pr., 12; or on an amercement, 1 Chitty, 209; or on several leases, 8 Co., 87; Archb. Or. PL, 174; or on several bonds, Gabell vs. Yaugham,, 1 Saund., 291; or on a penal statute, and for money had and received, • Jagues vs. Whitcomb, 1 Esp. Rep., 361; or Covenant on several deeds, Cro. Jac., 329; 1 Lev., 110; Archb. PL, 174; or Detinue for Charters & Chattels. Ib.
    
    The ultimate destination of the fund, or the ultimate liabilities of defendants, as between themselves, does not control this view. 1 Chitty, 19, and 202; (10 Am. Ed.;) and cases there cited.
    The suit is well brought in the name of the corporation, averring that the bond was made to it by the name therein stated. See Mutual Relief Society vs. Ya-
      
      rieh et ais, 13 Johns., 38; WilUs vs. Bv/msbb, 2 Starkie R., 29; Bex vs. Boper, 1 Starkie R., 518. See also 1 Ohitty, 256, note 2, and cases there cited; lb. 217, note 4, and cases there cited. See Orafton Bcmh vs. Flcmders, 4 N. Iiamp., 239, cited in Banker’s Magazine, February, 1852, p. 645.
    T. A. R. NelsoN, for defendants,
    argued: The demurer goes back to the first fault in pleading. 2 Meigs Dig., 810, No. 1468.
    The two bonds cannot be jointly sued on. Counts requiring different pleas and judgments cannot be joined. 2 Meigs, 813, No.' 1477. The liabilities upon the two bonds are different and distinct. To allow them to be joined in one sirit would produce inextricable confusion. There are parties to both bonds not sued. Suppose an entire judgment is rendered, how could we have a judgment over on motion, and split the judgment so as to have an apportionment of it to each set of securities? See the general rule, 1 Chitty’s PL, 200, 411.
    As to joint plaintiffs, see 1 Chit., 3; 2 Meigs, 813, No. 1481; 816, No. 488.
    The securities in the second bond are not liable for any default which arose under the first, and vice versa; and though causes depending, on the same prmeiple may be consolidated, as in Dews vs. Fasthmi, 5 Terg, 297; yet, as the different defendants in each bond might have separate defenses not depending on the same principle, there is a misjoinder of causes of action, and of parties defendant. 2 Meigs, 813, No. 1477.
   MoKiNNEY, J.,

delivered the opinion of the court.

In the court below, judgment was rendered for the defendants, 'upon the plaintiffs’ demurrer to the defendants’ pleas in abatement, on the ground, that the declaration, to which the demurrer reached back, was substantially defective. The alleged defect in the declaration, is, a misjoinder of counts, or causes of action. And the question is, did the court err in its judgment upon the demurrer.

It is well settled, as a general rule, that where the plaintiff has several causes of action, of the same nature, all accruing to him in the same right, and against the defendant in the same character or capacity, they not only may, but ought to be joined in one action, by several counts in the declaration.- The policy of the law favors such joinder, and if several actions are brought, the plaintiff may be compelled to consolidate them, at his own costs.

The test given in some of the books, by which to decide as to the joinder of counts, namely, that the same plea may be pleaded, and the same judgment given on all the counts of the declaration, is by no means universally correct. The proper criterion seems to be, that the causes of action, set forth in the several counts, are of the same nature, and require, at common law, the same judgment, a capiatnir, or a misericordia, although the pleas may be different; as in debt on judgment, on specialty, and on simple contract, which may all be joined in one action, though the plea to each count may be different. Chitty’s Pl., 200; Gould’s Pl. ch. 4, §§ 79 to 99.

Applying these general principles to the case under consideration, we think it clear, that the judgment of the circuit court is erroneous. Here, the bonds declared on in the several counts, are the official bonds of the treasurer of the board of trustees: • the one for the year 1843, and the other for the year 1844. The defendants, G-. B. Powell and William Miller, were sureties to both bonds. The other sureties to said bonds, who are not sued in this action, were not sureties to both. W. D. Kenner was only a surety to the bond of 1843; and Jacob Miller and ITenry Tartar were only sureties to the bond of 1844.

It is urged, that the parties to the two bonds being, as to some of the persons, different, this of itself constitutes a sufficient reason why a joint action cannot be maintained 'upon said bonds. Had all the sureties-to both bonds been sued in this action, this argument would have been well founded. Put the rule of the common law, which required, that upon joint contracts, the parties should all be sued; and that upon joint and several contracts, the plaintiff should proceed against all jointly, or each separately, being altered by our law, which makes all joint contracts, in effect, joint and several, and permits the plaintiff to proceed against so many of the parties, or obligors, as he may think proper; the argument, we think is of no force. The plaintiff having the election to sue some of the joint obligors, and to omit others; and the persons sued in the present action, being parties to each bond, the case rests upon precisely the same ground, so far as the question of misjoinder is concerned, as if there were no other parties to said bond; the bonds described in the different counts, are to be regarded as the bonds of the defendants alone.

Again: it is said that in a joint recovery and judgment, upon both counts of the declaration, the several liabilities of the sureties, on the different bonds, will be so confused and blended, that in a proceeding by them respectively, for indemnity and contribution, against their principal and co-snreties, their rights cannot be adjusted, because it cannot be ascertained what amount of damages was assessed upon either bond.

No such consequence need ensue, if the proceedings are properly conducted. Separate damages should be assessed by the jury upon each count of the declaration; and the judgment of the court, in pursuance thereof, should be for the recovery of the penalty of the bond described in the first count, to be discharged by the payment of the damages assessed by the jury upon that count; and likewise for the recovery of the penalty of the bond described in the second count, to be discharged in like manner; stating the aggregate amount of damages for which execution is awarded.

2. The misnomer of the corporation is no ground of objection. The first bond is made payable to William Simpson and others, by the description of “Trustees of the McMmmille Academy in Hawkins county,” &c.; and the corporate, name is “ McMinn Academy.” It has been held, and we think properly, that where a deed is made to a corporation, by a name varying from the true name, the plaintiffs may suq in their true name, and aver in the declaration that the defendant made the deed to them, by the name mentioned in the deed. 10 Mass. Rep., 360, 363; 13 Johns. Rep., 38; Angel & Ames on Corp., 584, (third edition.)

The result is, that the judgment of the circuit court will be reversed, and the demurrer to the pleas in abatement be sustained, and that the defendants answer over to the declaration.  