Montague's v. Turpin's

delivered the opinion of the Court.

The Court is of opinion, that as it appears that the appellant had obtained a judgment against the appellee F. J. Turpin administratrix of Miles Turpin, upon the joint and several bond executed to the testator of the appellant by the said Miles Turpin, together with Benjamin Haley and George Williamson, the said judgment was conclusive evidence of the validity of the debt as against the personal representative of said Miles Turpin. And it furthermore appearing from the record of the case of Turpin v. Sheppard & others, made an exhibit in this cause, and the exhibits filed in said cause, that said Haley and Williamson who were jointly bound with said Miles Turpin, are both dead insolvent, and have no personal representatives, it was not incumbent on the appellant under such circumstances, to have representatives appointed, and make them parties; more *456especially as the appellee, the administratrix of said Miles Turpin, did not by her answer or in any other mode object to the failure to make them parties. The Court is therefore of opinion that the Circuit court erred *n dismissing the bill because the appellant declined to amend her bill and make the representatives of said Benjamin Haley and George Williamson parties.

The Court is further of opinion, that the evidence in the record does not shew that any part of the debt for which the judgment was obtained, was ever paid by the said Benjamin Haley, and as the cause came on for final hearing it would have been proper as the case was presented to proceed to decree in favour of the appellant; but as no decree was rendered upon the merits by the Court below ; and a decree by this Court proceeding to pronounce now such a decree as the Court below should have done, might operate as a surprise on the appellees, it is adjudged and ordered that the decree be reversed with costs; and the cause remanded for further proceedings in order to a final decree.