(Geddis and another, surviving obligees, v. Hawk, surviving executor of Hawk.) 1819, on which a fieri facias had issued, and real estate had been levied on and condemned.

On the trial, the defendant offered Frederick Wolfersberger, to prove, that in conversation with the plaintiffs, they admitted, that Michael Hawk was only security in the bonds, and Adam Hawk the principal: and also that the witness as guardian of Philip Kerper, a minor, one of the heirs of John Kerper, deceased, had called on the administrators, to prevail on them to collect the amount of the bonds from A. Hawk, the principal, which they refused to do. This evidence was objected to by the plaintiff, but was admitted by the court, who sealed a bill of exceptions.

The defendant further offered a deed indented from A. Hawk and wife to Peter Witmer, dated the 3d April, 1817, and a bond of indemnity from A. Hawk, Martin Thoma, and John Wolfersberger, Jr., to Peter Witmer, dated the same day. This evidence being objected to by the plaintiff, was received by the court, and a second bill of exceptions was tendered.

A third bill of exceptions was taken by the plaintiffs to the opinion of the court, rejecting Martin Thoma, whom they offered, to prove that M. Hawk told him he intended to pay the bonds given to Kerper's administrators, as an advancement to his son Adam; and that that was the reason why Adam was not mentioned in the will of him the said H. Hawk, as the testator had already advanced him equal to his other children.

In answer to the points proposed by the plaintiffs, the court below charged, that the bonds on which this suit was brought were joint, and not several obligations, and Michael being dead, Adam the survivor was liable for the payment of them. As it appeared in evidence that Adam purchased the land for which the bonds were given, and that Michael his father entered into them as his security, and that he (Michael) never received any part of the land or of the proceeds of the sale of it, the representatives of Michael were not liable in this action. The plaintiffs excepted to this charge, and the jury found a verdict for the defendant.

The following errors were now assigned.

1. The court erred in admitting the testimony stated in the first bill of exceptions.

2. The court erred in admitting the testimony in the second bill of exceptions.

3. The court erred in not admitting the testimony in the third bill of exceptions.

4. The court erred in their charge to the jury.

Wright, for the plaintiffs in error.

First bill of exceptions. The evidence admitted, that the obligees were called upon to bring suit against A. Hawk, was irrelevant: because, the call was not made by Richard Hawk the surety, or his representatives. It was irrelevant in another point of view; supposing the bond to be joint, in order to take advantage of the

(Geddis and another, surviving obligees, v Hawk, surviving executor of Hawk.) non-joinder of A. Hawk, it was necessary to plead it in abatement. If one be sued on a joint bond, he must take advantage of it by pleading in abatement: for if he demands oyer, and demurs, the plaintiff shall have judgment. 5 Bac. Ab. 164. 1 Str. 503. This principle is now well established. 1 Saund. 291, note 4. Rice v. Shute, 5 Burr. 2614.

Second bill of exceptions. The evidence received was altogether irrelevant.

Third bill of exceptions. The evidence offered by the plaintiffs was proper, to rebut that produced by the defendant. It went to show, that M. Hawk considered himself as principal.

Elder, contra.

First bill of exceptions. A. Hawk, the son of Michael, purchased the land for which those bonds were given, and Michael was surety for his son. The defendant had a right to prove that Michael was surety, and that he was discharged by the conduct of the obligees, in not suing the principal when required by the guardian of A. Kerper, an infant. This evidence was proper, under the plea of payment, with leave.

Second bill of exceptions. The evidence of the deed from A Hawk to P. Witmer, and the bond of indemnity from Martin Thoma and others to P. Witmer were proper, because they showed that Thoma, who was offered as a witness by the plaintiffs, was in

terested.

Third bill of exceptions. Thoma was not a competent witness, because he had given a bond of indemnity to P. Witmer, who purchased of A. Hawk the land, for the purchase money of which the bonds now in suit were given. On a recovery on these bonds, the lands might be taken in execution: for lands sold by order of the Orphans' Court are liable for the purchase money. (Act of 2d April, 1804, sect. 2. Purd. Dig. 298.)

As to the alleged error in the charge of the court, we contend that the bonds were joint and not several, and therefore that the surviving obligor only is liable; the executors of the deceased obligor being wholly discharged. 5 Bar. Ab. 163, 164. 7 Bac. Ab. 506. The words used are, "we bind ourselves, and each of our heirs, executors, &c." The cases put of joint and several obligations, are of the obligors binding themselves and each of them-themselves or any of them. If even these words be used, yet if the word "conjointly" be used, it is a joint obligation. 5 Bac. Ab. 164, and cases cited. The present bond is to be considered joint as to the obligors, and several as to their executors and administrators: and of course remaining joint till both are dead. In Pecker v. Julius, decided by Judge Franklin at York county, 2 Bro. 31, a bond by two, binding themselves, their heirs, executors, administrators, and every one of them, was held to be a joint, and not a joint and several bond. Then, if the surety in a joint bond die first, his executors are discharged. This was so decided by this

(Geddis and another, surviving obligees, v. Hawk, surviving executor of Hawk.) eourt in Weaver v. Shryock, 6 Serg. & Rawle, 262, where the principal had paid part of the debt and become insolvent, and no part of the money came to the hands of the surety. In Foster v. Hooker, 2 Mass. Rep. 572, it was held that by the common law, on the death of one of several joint promisors on a promissory note, no action lay against his executors or administrators. In Ming's Executors v. Field's Executors, 2 Wash. 136, relief was refused by the Court of Appeals in Virginia against the representatives of a deceased obligor, who was a mere surety.

Norris, in reply.

1. The matter offered in evidence by the defendant, was not evidence on a plea of payment. It ought to have been specially pleaded that the bond was joint and one of the obligors was living. And as to the equitable matter, it was not relevant. The estate

purchased by A. Hawk had belonged to J. Kerper, and was sold by order of the Orphans' Court. J. Kerper's administrators took these bonds for the purchase money from A. and M. Hawk: but both were principals; and, moreover, by act of assembly the purchase money was a lien on the land. As to the notice to sue A. Hawk, it was not given by M. Hawk, or on his behalf, but came from another quarter,

2. The deed from A. Hawk and the bond of indemnity were not evidence, because at that time M. Thoma had not been offered as a witness.

3. I grant that after the deed and bond of indemnity were in proof, M. Thoma was not a competent witness.

There was error in charging that the bond was joint. There are sufficient words to make it several, namely," each of our heirs, executors, and administrators. It is confessed that the bond is several as to the administrators, and there can be no equity in suspending the plaintiffs' action till the death of an insolvent obligor. The opinion of the court was delivered by

GIBSON, J. This action is brought on two bonds given by the defendant's testator and his son Adam Hawk, for the price of a tract of land purchased by Adam, at the sale of the real estate of John Kerper, held under an order of the Orphans' Court: in which the defendant's testator was bound as a surety. At the trial one ground of defence relied on, was, that the plaintiffs had indulged the principal with time, after they had been required to bring suit against him; and in support of this the defendant offered a certain Frederick Wolfersberger to prove, that in conversation with the plaintiffs, they admitted that Michael Hawk was only a surety in the bond, and that Adam Hawk was the principal; and that the witness, as the guardian of Philip Kerper, one of the heirs of John Kerper, called on the administrators of John Kerper, (the obligees and plaintiffs in the suit,) to prevail on them to collect the amount of the bonds from Adam Hawk, the principal; but that they refused to do so. The evidence thus offered was

(Geddis and another, surviving obligees, v. Hawk, surviving executor of Hawk.) admitted, and now forms the subject of the first bill of exceptions. It is certain that an obligee who being solemnly warned by the surety, neglects to sue the principal in due season, loses the benefit of his security, as against the surety: and what sort of warning or demand is necessary for that purpose, was fully considered by this court in Cope v. Smith and others, Executors of Smith, 8 Serg. & Rawle, 110. It is, therefore, necessary at present only to say, that the demand must come from the surety, or some one authorised by him to make it, and not from a third person. Here Wolfersberger, who made the demand, acted in the matter, as the guardian of one of the heirs of Kerper, and had nothing to do with the sureThe evidence ought therefore to have been excluded.

The second bill of exceptions contains matter which is said to have been irrelevant to the issue, but which appears to have been directly operative and proper to show that Martin Thoma, a witnes on the part of the plaintiffs, was interested; and the third bill of exceptions, which was for rejecting Thoma as witness, whose interest is now admitted, is abandoned.

The exceptions to the charge are: 1. That the court directed the jury that the bonds on which the suit is founded, are merely joint, and not joint and several; and consequently that the action against the representatives of one obligor cannot be sustained without averring and proving that the other is dead, and that the defendant is the personal representative of the surviving obligor: 2. That if the bonds were not joint and several that still the defendant could take advantage of that circumstance only by a plea in abatement; and that the court, having been required, ought so to have directed the jury.

I am of opinion these bonds were joint and several. The construction of an obligation like that of every other instrument depends on the intention of the parties, as collected from their words, and where the intention of the parties is plain, it is under particular circumstances carried into effect even contrary to the express words. Butler v. Wigge, 1 Saund. 66—7. Both bonds are in this case exactly alike; and the obligors set out with an acknowledgment of indebtedness, in words which denote no intention that there should be a severance of their responsibility: but in the conclusion, they use these words: "to which payment well an truly to be made or done; we bind ourselves, and each of our heirs, executors and administrators." Here it must be conceded that if the word "each" were to be transposed so as to be grammatically applicable to the persons of the obligors instead of being exclusively applicable to the persons of their representatives, these obligations would be several as well as joint. Now this word "each" must be taken as having been intended to have some operation and legal effect; and if it can have none where it stands, we are bound to suppose that this particular collocation of the words used, was purely accidental, and contrary to the real intent and meaning of the parties. But

(Geddis and another, surviving obligees, v. Hawk, surviving executor of Hawk.) the word can have no operation where it stands; for it is impossible that a bond shall be joint as to the immediate parties, and several as to their representatives, survivorship as respects the remedy being an incident of every obligation which cannot be dispensed with, even by the agreement of the parties, as the law will not suffer its forms to be violated by the introduction of new and unheard modes of proceeding. To permit the personal representatives of a deceased obligor to be joined in an action against the survivor; or all the representatives of the immediate parties, where the immediate parties are all dead, to be sued jointly or severally at the election of the obligee, would involve the administration of the law in absurdity and endless perplexity. Such an anomly could never be tolerated. We must then intend that the word "each" was designed to be applicable to the persons of both obligors wherever they are. named; and if that be so, the consequence is unavoidable that these obligations are several as well as joint. This result is not obtained by a process of artificial reasoning inconsistent with the real meaning of the parties. Let any one read these obligations for himself, and his first impression will undoubtedly be that the obligors actually intended to bind themselves jointly and severally.

The decision of this point would render a decision of the question raised by the remaining exception unnecessary, if on account of its difficulty I were disposed to elude it. But it is extremely clear that if these bonds were only joint, the defendant could have availed himself of that circumstance only by a plea in abatement; for though it is expressly averred in the statement, which is in lieu of a declaration that both obligors sealed the bonds, it is not admitted in any part of the pleadings that Adam Hawk is still alive, or that he survived the defendant's testator: in either of which events only, could the defendant move the matter in arrest of judgment, and consequently assign it as error here. But here the error is assigned by the plaintiffs to the charge of the court, which was wrong in any event; for even where the defect appears on the record the defendant cannot avail himself of it in evidence before a jury, unless perhaps where he has actually pleaded it in abatement: the proper course being to move in arrest of judgment. But the law is considered and the authorities stated by Mr. Williams in a note to Cabell v. Vaughan, 1 Saund. 291, b. (note 4,) with such clearness and accuracy, as to render any particular investigation of the subject here altogether unnecessary.

Judgment reversed, and a venire de novo awarded.