
    Richardson v. Johnston.
    [April Term. 1801.]
    Amendment — Plea.—Blea allowed to he amended . after a trial and verdict for the plaintiff.
    Joint Bond — Death of One Obligor — Effect.—Joint bond anterior to the act of 1786 ; the death of on e obligor, before that act, discharges his executors.
    Richardson’s administrators brought suit in 1795, against W. Johnston executor of Richard Johnston deceased,'and declared iipon a joint,bond given by Charles Tinsley and the'said'R. Johnston to Richardson in his lifetime; dated the 4th of May 1771; and conditioned for payment by Tinsley only. The defendant plead payment; and the plaintiff took'issue. Verdict and judgment for the plaintiff: Which were after-wards .set aside during the same term; and the defendant withdrawing his former plea, and taking oyer of the bond and condition, for plea said ‘‘that the plaintiffs ought not to'have their said action against him; because he saith, that thé said Richard Johnston departed this life on the ' day of 17 the said Charles Tinsley his co-obligor being then in full life;' whereby the action survived to the said Tinsley, and the' said Johnston and his executors became wholly dischárged '’’■'therefrom : Wherefore he prays judgment &c.”
    The plaintiff demurred to the plea; and the defendant joined in the demurrer.
    The plaintiff also filed a bill of exceptions to the courts opinion on their setting aside the. verdict and judgment; which stated, “That the defendant moved to set aside the verdict, and award anew trial, for the purpose of introducing by way of amendment to his former plea of payment the fact as stated in' the affidavit of' James Turner hereunto annexed:” Which affidavit is in these words, to wit: ‘These are to certify that James Turner came before me the 9th day of September 1797, and made oath, that he went to the town of New Castle to live May 1772, and that at that time Colonel Richard Johnston, late resident of the said town, was dead; and that Charles Tinsley, merchant of the said town, was then living, and to the best of his knowledge died about two years afterwards: Given under my hand the day and year above written.
    John Barret.’
    “Of which fact, and that the obligors to said bond were jointly and not severally bound, the defendants counsel, , it is admitted by the plaintiffs, was ignorant, until the trial of the cause. To which motion the plaintiffs objected, but was overruled by the Court.”
    The District gave judgment for the defendant upon the demurrer, and the plaintiffs appealed to this Court.
    Duval, for the appellant.
    The District Court ought not to have granted a new trial. The ignorance of the counsel was no cause for it; 3 Morg. 143. There is no more reason for allowing the new trial here, than there would be for allowing the act, of limitations, or a tender after a judgment by default; because the justice of the *case was with the appellant, as the debt was an honest one, and the attempt is to get rid of it, by a rigid rule of law. 5 Bac. 47; Salk. 647. Besides the length of time, will now afford a presumption against the bond.
    Smith contra.
    The debt was discharged, against his executors, by the death of the co-obligor; and therefore the cause,of action was entirely gone. It was consequently right, that the party should have an opportunity of shewing the death. But it appears, upon the face of the declaration, that the co-obligor was dead; and therefore it was sufficient cause to arrest the judgment. Consequently this Court, proceeding to give such judgment as the District Court ought to have given, may without regard to the bill of exceptions, arrest the judgment now, and thus put an end to the cause.
    Cur. adv.,vult.
    
      
      Plea — Admission after Verdict.-In Tomlin v. How, Gilm. 8, the court said: “As to the verdict which was first found in this case, the case of Richardson v. Johnston, 2 Call 527, Shows that that circumstance does not prevent the admission of a plea called for by the justice of the case.” See monographic note on “Amendments ” appended to Snead v. Coleman, 7 Graft. 300.
      Joint Obligations — Liability of Deceased Obligor’s Estate. — It was held in Chandler v. Hill, 2 Hen. & M. 124, 130, citing the principal case, that the surviving obligor in a joint note, made before the'act of 1'786, is alone liable to an action at law ; nor can the note be set up in equity against the representatives of the deceased obligor, but on the ground of moral obligation antecedently existing ón his part to pay the money.
      Thus, in an action against the representatives of a person deceased, on a joint covenant entered into before the act “concerning -partitions and joint rights and obligations”- (1 Rev. Code, 31), if it appear from the declaration that one of the joint covenant-ors survived, it is a radical defect, and not cured by verdict. Atwell v. Milton, 4 Hen. & M. 253, 256, citing the principal case ; Elliott v. Lyell, 3 Call 269 ; Harrison v. Field, 2 Wash. 136. See Atwell v. Towles, 1 Munf. 175.
    
   LYONS, Judge.

Delivered the resolution of the Court to the following effect. That the plea of payment was improperly put in, by the attorney instead of pleading the discharge. That this was done through in-advertance, and for want of information. Consequently, that the Court was right in granting the new trial, and allowing the plea; which went to exonerate the defendant altogether, as the death of his testator discharged his estate, from the obligation.

Judgment Affirmed.  