The demurrer was well taken for the misjoinder of the administrator of Dewey with the surviving obligors. (Humphreys v. Yale, April Term, 1855.) The undertaking being a joint obligation, only the survivors can be sued on it. (Grant v. Shurter, 1 Wend. 150.)
JUDGES: The opinion of the Court was delivered by Mr. Chief Justice Murray. Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.
OPINION
MURRAY, Judge
The demurrer was properly sustained upon the second ground, because the administrator of Dewey ought not to have been joined.
In actions upon joint and several contracts or obligations, an administrator cannot be joined with the survivor, because one is joined de bonis testatoris, and the other de bonis propriis (Humphreys v. Yale , 5 Cal. 173.)
It is said the demurrer was sustained on a different ground in the Court below. It makes no difference, as this was one of the causes of demurrer assigned below.
Judgment affirmed.