Martin agt. Kanouse.

recovered a judgment against the plaintiff, and the object of this action was to set off one judgment against the other. The question in this case is, whether the attorney for Kanouse had such a lien for the costs recovered in the suit between Kanouse and the plaintiff, that the plaintiff cannot set off the judgment which he now holds to the one which stands in Kanouse's name against the plaintiff.

The answer of the defendant alleges that the judgment in favor of Kanouse is for costs only, no part of which ever belonged to the defendant, but belonged to Garr, as his attorney in these suits, and that the defendant is not the beneficial owner of the judgment recovered in his favor.

JOHN M. MARTIN, for motion.
A. S. GARR, opposed.

By the court-MITCHELL, Justice. Prima facie, a judgment in favor of a party, belongs to him, whether it be for costs alone, or for debt, or damages and costs; and it might follow under a rigid system of pleading, that this prima facie conclusion must continue until the pleader should show how and by what means a transfer of this right was made, so as to justify a different conclusion. Under such a system the answer would be frivolous, because it does not show facts sufficient to change the prima facie conclusion of law.

The real fault in this kind of pleading is, that it is not as definite and certain as it should be, and for that imperfection the supreme court in this district has held the only remedy to be that pointed out by the Code-a motion to make it more definite and certain. The proper course will be to reverse the order of the special term without costs, and leave the plaintiff to move that the answer be made more definite and certain, and that the defendant should show how and in what manner, and for what reason, the costs now belong to the defendant's attorney; whether it was by virtue of the attorney's lien for costs, or by virtue of any special agreement between the defendant

Brainard agt. Jones and Provost.

and his attorney; and if the last, what this agreement was, and when it was made, whether by parol or in writing.

When the pleadings shall be corrected in these respects, the court must suggest to both parties that it will be their interest to allow the cause to proceed to trial without continual motions.

SUPREME COURT.

GEORGE W. BRAINARD, respondent, agt. MILES JONES and JOHN S. PROVOST, appellant.

An objection to a complaint for the non-joinder of parties, cannot be taken by special demurrer, unless the complaint shows that the party for whose nonjoinder the demurrer is interposed, was living when the suit was commenced. It is not enough that the complaint is silent on the subject, the fact must appear affirmatively.

Where the fact does not appear on the face of the complaint, the objection should be taken by answer, analogous to a former plea in abatement.

Under the 120th section of the Code, all or any of the parties, severally liable upon a bond, may be included in the same action. That is, the section applies as well to bonds as to bills of exchange and promissory notes.

Niagara General Term, Sept., 1855.

Present, BowEN, P. J., MULLETT and GREENE, Justices. APPEAL from an order at special term overruling a demurrer to the complaint.

CHARLES DANIELS, for appellant.

D. F. CLARK, for respondent.

By the court-GREENE, Justice. The complaint is on a replevin bond, executed (under the old system) by one Alexander Ramsdell, as principal, and the defendants as sureties. The agreement of the obligors is joint and several. Ramsdell is not joined as a defendant in the action, and the defendant

Brainard agt. Jones and Pravost.

Jones demurs for a defect of parties: first, on the ground that Ramsdell is not made a party; and, secondly, that he, Jones, is improperly joined as a defendant with Provost.

At common law, the defendants could not be sued jointly without joining Ramsdell, provided he was living at the time of the commencement of the action. But the remedy of the defendants, when so sued, was a plea in abatement, in which it was necessary to aver that the obligor, whose non-joinder was pleaded, was then living. No case has been cited where a demurrer for non-joinder has been sustained, unless this fact was affirmatively shown by the declaration, with as much certainty as was required in an averment of the same fact in a plea in abatement. Until the fact appears clearly on the record, no case is made for abating the suit. (1 Saund. 291, and notes.)

The dictum of the CHANCELLOR, in the case of Burgess agt. Abbott, (6 Hill, 141,) that the objection might be taken by special demurrer, although it did not appear from the declaration that the party was living, was not called for by the facts of the case, and seems to be opposed to the authority of the case of the State of Indiana agt. Worham, (id. 33,) where, as I understand the opinion of Justice BRONSON, the objection was taken by special demurrer. But it is sufficient that no authority is to be found in favor of the rule suggested by the CHANCELLOR, when no substantial reason is urged requiring its adoption. The 144th section of the Code, lays down the same rule that prevailed at common law. It provides that the defendant may demur to the complaint "when it shall appear upon the face thereof" that there is a defect of parties. This does not appear unless the complaint shows that the party for whose nonjoinder the demurrer is interposed, was living when the suit was commenced. It is not enough that the complaint is silent on the subject. The fact must appear affirmatively.

Another conclusive answer to this objection is found in the 120th section of the Code, which provides that, "persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may,

Brainard agt. Jones and Provost.

or any of them, be included in the same action, at the option of the plaintiff.'

It is argued by the defendants that this section was intended to apply to actions on bills of exchange and promissory notes only, and the explanatory note of the commissioners is cited in support of this construction. The note is in these words, "conformable to the present statute authorizing suits against the different parties to bills of exchange and promissory notes." (Laws of 1832, ch. 276.)

This statute referred to suits on bills of exchange and promissory notes specifically, and to nothing else; and so far as the 120th section relates to those instruments, its provisions are "conformable" to those of the statute in question; and the note above cited is well enough as a declaration of that simple fact. But if it is to be regarded as the opinion of the commissioners as to the effect of the section to which it is appended, it lacks the important element of authority, which the section has derived from the sanction of the legislature; and we must still look to what the legislature have said as the primary evidence of what they meant. The language of the section must be received in its ordinary sense, in which the legislature is presumed to have used it; and when it is plain and unequivocal, there is no room for construction. The language is, "persons severally liable on the same obligation or instrument,” may all or any of them be joined at the option of the plaintiff.

It would be difficult to select language more comprehensive than this, or more plainly indicating parties to every agreement or undertaking upon which a party may become liable to an action; and it would be a forced and unnatural construction to hold that the subsequent superfluous words "including parties to bills of exchange," &c., excluded parties to every other "obligation or instrument." (See the opinion of WILLARd, J., in the case of De Ridder agt. Schermerhorn, 10 Barb. 638.) The order must be affirmed, with costs.

An appeal from an order sustaining or overruling a demurrer, under § 349 of the Code, does not operate, per se, a stay of proceedings. (This agrees with Story agt. Duffy, 8 How. Prac. Rep. 488; and Bacon agt. Reading, 1 Duer, 622; and is adverse to Emerson agt. Burney, 6 How. Pr. R. 32; and the Trustees, &c., Penn Yan agt. Forbes, 8 id. 285.)

Erie Special Term, March, 1855.

THIS action was brought for the recovery of specific personal property. The complaint was demurred to by the defendant; and after a hearing at special term, the demurrer was overruled, but liberty was given to the defendant to withdraw the demurrer and answer the complaint in twenty days, on payment of costs. The defendant did not answer within the twenty days, but within thirty days appealed from the order overruling the demurrer, under § 349 of the Code, and gave an undertaking pursuant to § 334. The appeal is yet pending.

The plaintiff now moves for a writ of inquiry, to assess his damages for the detention of the property. The defendant opposes the motion, insisting that the appeal operates as a stay of proceedings.

J. S. TORRENCE, for motion.
T. BURWELL, opposed.

BOWEN, Justice. In Emerson agt. Burney, (6 How. Pr. Rep. 32,) it was held by Mr. Justice WELLES, at special term, that an appeal from an order under § 349 of the Code, operated as a stay of proceedings in the cause, without any undertaking being given. The same thing, in effect, was held by the same learned justice at special term, in the Trustees, &c., of Penn Yan agt. Forbes, (8 How. Pr. R. 285.)

It appears, by a note appended to the last case, that the de