Mr. Justice Heydenfeldt and Mr. Justice Terry concurred.

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. R.

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.