Joseph Story

“ But if it should appear upon the face of the declaration, or other pleading of the plaintiff, that another jointly sealed the bond with the defendant, and that both are still living; the court will arrest the judgment, and the objection may be taken by demurrer: because the plaintiff himself shows that another ought to be joined; and it would be absurd to compel the defendant to plead facts which are already admitted. ”

“ But such an objection can only be taken advantage of by a plea in abatement: for if one party only is sued, it is not matter in bar of the suit, or in arrest of judgment, upon the finding of the jury, or of variance in evidence upon the trial. Thus, for instance, if one obligor be sued upon a joint bond, and upon oyer the bond is spread upon the record, and thereby becomes a part of the declaration, by which it appears that another person is named as a joint obligor ”

“ It is clear from the cases cited in 5 Burr. 2611, and that in Alleyn, which corresponds very accurately with the present.' The same point was adjudged in the same way by the same court in the subsequent case of Rex v. Chapman, 3 Anstr. Rep. 811. ”