Year: 1859

against defendant as drawer of bill of exchange.
t appeared In evidence at the trial, that the bill
was drawn oy the defendant and another Jointly.
1t was objected that there was a variance between
the bill proved and the bill declared upon and
the Judge lnellning to that opinion permitted the
cause to proceed, with liberty to the defendant To
move for a new trial. The Court were afterward
OF opinion that there was no variance between the
bill OF exchange proved and that which was de-
oiared Gpon' but that defendant should have plead
ed in Abatement


In the case of Rice u.s. Shute. Burrows Ren
page 2,6ll, which was action for a partnersbin
debt against one partner only, the plaintiff was
nOnsulted. But, upon motion in the Court of
Kings Bench to set aside the nonsuit, the Court
held that defendant ought to have pleaded the OBJ
Jeetlon IN abatement, and that his not having done
so was a waiver of the objection, and the nonsuit
was set aside. The reasoning of LORD MANSFIELD
In that case, seems to fairly applicable to the
case now before US. His reasoning was to the eE-
lect that on partnership debt each partner was
liable to pay the whole that the defendant was
not injured by another partners not being made
defendant, because what he pays he must have
credit Tor IN his account with the partnership;
that If the defendant does not take advantage of
the nOn,joinder at the beginning of the suit, and
plead 1T In abatement it is waiver of the objec-
ton; that he ought not to be permitted to lie by
and put the plaintiff to the delay and expense of
trial, and then set up plea not founded in the
merits of the cause but on the form Of proceeding
and that no injustice was done to the defendant
by allowing the plaintiff to recover


In the case of Scott u.s. Goodwin, / Bosanuuet
and Puller, Chief Justice EYRE, in delivering
Judgment, said, ' In the great bulk of cases where
1T has been holden, that ifathere are not proper
parties to a record, advantage must be taken of it
by plea in abatement, the objection has been that
other persons ought to be made co-defendants with
the defendant record and there is an essential
n hoty o,,I -
objection is, that there are not the proper parties
plaintiffs in the suit. Many plaintiffs can have
but one right, having but one interest and
cause of action, which ought to be, and is, indi-
visible admitting of but one satisfaction.


Whereas.in the case of defendants, in respect
of the satisfaction they are to make to the plain
tiff, it is exactly the thing whether they are
sued singly or with others, for every individual
eo-defendant is ultimately liable to the whole de-
mand, and execution may be had against any one.
There is therefore of form than of substance
in the objection that others should be made code
fendants."


As we have already stated, although this suit,
so far as the joint note is concerned ought to have
been brought against both the makers Of the note,
so that judgment, if recovered, might have been
recorded against bCtl, yet, service upon Hennes-
sey alone would have been sufficient for appear
ance, and upon joint judgment rendered against
Hennessy and Coe, the sole property of Hennessey
might have been attached to satisfy that Judgment
[See East, 6S, .; Term Rep, 10; Sergeant
and Rawle, 49,


The last, and, to our minds, by far the weight
lest point, suggested error is that none of the
notes payable to B. F. Bolles, the plaintiff be-
low, and that none Of them are endorsed by the
payees named therein, nor is any assignment of
them to him averred in his petition. So far as
regards the note drawn in favor of George NJ.
Rota - toll for
reference to the record sent up, it appears that
that note does bear the endorsement of George NJ
Bates, by his attorney in fact, Z. z. Bond. Upon
the comics served with the summons by the Sheriff.
upon the defendant below, this endorsement was
omitted through negligence or mistake. But as
we not correcting errors in the copies of pa
pers SERVED upon defendant, but in the record of
the Circuit Court, look only to that record,
and unless the exists there it does not exist
at all, for the purposes of this proceeding. A
party cannot assign for error matter contrary to
the record. ICromptOn's Practice, Vol. 2, page
$780, The default of the defendant below is
equivalent to an admission on his part of the gem
uineness of his own signature to the note, and
likewise of the validity of the endorsement which
appears thereon; and, in our opinion, the judg-
ment upon that note is perfectly regular. [Stat-
ute Laws, Vol. 2, page 40, sec a. But, as re-
CARDS the other four promissory notes, all of which
are payable to the order of Messrs BOLles d Co.,
and none of which are endorsed, it seems to us
the suggestion of error is sound. Touching those
notes, we regard the default of the defendant be-
low, as being equivalent simply to admission
that he made the notes, and not an admission that
they are payable to b. +. BOLes, or that he has
any right of action upon them, for this does not
appear in any way, upon reference to the plain
tiffs petition and declaration. The plaintiff sues
upon unendOrsed notes, of which he is not the
payee he does not set forth any assignment Of
the notes to himself; nor does he aver in his pc
tition that the name Messrs. BoLes q Co. means
in fact B. +. BoRes alone, fact which cannot be
presumed.


When party defendant is duly and personally
served with a copy of the petition, and the pro-
cess of the Court, and voluntarily stands off, suf
fe-ing Judgment to go against him by default, he
undoubtedly runs q very great risk but we take
it to be sound principle of practice, that the
plaintiffs petition and declaration, admitting the
truth of what is therein ayerred and set forth,
must show a sufficient legal right of action in him
to support Judgment in his favor. If not, any
Judgment that he does obtain is, il seems to us,
erroneous and without foundation in Law.


We are therefore of the opinion that the judg-
ment below should be reversed as to the four un-
endorsed notes, and that it should be affirmed as
to the other.


Let Judgment be entered accordingly the costs
of this proceeding to be equally divided between
the parties.


Messrs. Blair and Harris for Plaintiff in error.


Mr.. Bates for defendant in error.


FREE LovE.-The Cincinnati Times tells some
hard yarns occasionally. But they are readable for
all Of that. The last is Of Miss Sarah A. Walker,
whose father is respectable and wealthy merchant
in Cayugs, n. Y. She ran away from home few


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