
    Newkirk and Another v. Johnson and Another, Executors.
    Debt against the executors of Cooper on a promissory nolo payable to the plaintiffs, executed by the testator and Farmer by the name of Cooper & Farmer. The declaration averred that the makers were dead, Farmer having died first; and that the makers had not, nor had either of them, paid the note, nor had the defendants or either of them paid it. Held, that the declaration was not objectionable for not alleging the non-payment by the representatives of Farmer.
    
    
      Tuesday, July 28.
    APPEAL from the Montgomery Circuit Court.
   Blackford, J.

Debt on a promissory note payable to the plaintiffs. The declaration states that the note was executed by Cooper (the defendants’ testator) and one Farmer, by the name and style of Cooper & Farmer; that Farmer died and Cooper survived him; that Cooper afterwards died, leaving the defendants his executors. Breach, that Cooper and Farmer had not, nor had either of them, paid the note; nor had the defendants or either of them paid, &c. General demurrer to the declaration, and judgment for the defendants.

The appellee's contend that the non-payment by the representatives of Farmer should havé been averred. This objection is founded on the statute, which makes the representatives of a deceased joint obligor as liable as if the obligation had been joint and several; Rev. Stat. 1838, p. 358. A sufficient answer to this objection is — that it does not appear by the declaration that there are any legal representatives of Farmer; nor is it to be presumed that there áre any such representatives; If there are any, and they have paid the note, the deféndants can show those facts by their plea.

W. M. Jenners, for the appellants.

II. S. Lane and S. C. Willson, for the appellees.

Per Curiam.

The judgment is reversed' with costs. Cause remanded, &c.  