Grubb against Foltz, 4 Watts & Serg. 548

The opinion of the Court was delivered by Kennedy, J., (after stating the case). — To show that the court erred, the opinion of the late Mr Justice Washington, as expressed in Jordan v. Wilkins, (3 Wash. C. C. Rep. 112), has been cited and relied on. He admits the general rule to be, that the defendant cannot, unless he plead the same in abatement, turn the plaintiff round to another action, by proving that another is jointly bound with him to satisfy the plaintiff’s claim.

And that this principle applies in every case where the plaintiff gives notice to the defendant of the nature of his demand, so as to put it in his power to plead in abatement, as in actions on bonds, or special actions on the case.

But in actions of general indebitatus assumpsit, which was the case before him, he says, “ how is it possible for the defendant to know whether the plaintiff means, at the trial, to give evidence of a joint or several debt, or of both; and, in this state of ignorance, how can he plead in abatement \ Upon the face of the declaration, the claim is for a debt due from the defendant alone; and to permit the plaintiff to give evidence of a debt due from him and another, would be subversive of the rule which declares that he shall not be made responsible singly, unless he has waived the privilege, which the law allows him, of pleading in abatement.” Judge Peters, however, who sat with Judge Washington on the trial of the 'cause, entertained a different opinion, and was in favour of admitting the evidence tending to prove a joint claim against the defendant and another person not named in the action.

Neither can we yield our assent to the opinion of Judge Washington, that the action of indebitatus assumpsit either is or ought to be considered as forming an exception to the general rule, which requires a defendant, who is sued alone for a claim founded upon a contract for which he is jointly liable with another, to plead it in abatement, if he means to avail himself of the objection that such other has not been joined in the writ as a co-defendant with him.

The ground upon which that learned judge seems to think that the action of indebitatus assumpsit is or ought to be an exception, is not sufficient; for it need not exist, unless the defendant wishes to have it so; because Ire has it in his power before he can be called on and forced to plead to the action, to demand of and have from the plaintiff in it a specification of his claim, which will enable him to determine whether another be jointly liable with him or not for the payment of it, just as well as if the fiction were founded on a bond or a special contract.

It may therefore be said with truth, that if he be ignorant of the nature of the plaintiff’s claim, when he pleads to it, his ignorance does not arise so much from the nature of the action or declaration filed by the plaintiff in it, as from his own neglect or determination not to be informed with respect to it. The judgment is therefore affirmed. Judgment affirmed.