The legislature enacted this statute with the purpose "to destroy the distinction between joint, joint and several, and several liabilities." State ex rel. Shenandoah Valley Nat'l Bank v. Hiett, 17 S.E.2d 878, 879 (W. Va. 1941). Viewing the law in the plaintiff's favor, this Court will assume that a performance bond may be considered an "other instrument" under the statute.
In this jurisdiction a misjoinder of causes of action and parties defendant may be raised on demurrer. State ex rel. Shenandoah Valley National Bank v. Hiett, 123 W. Va. 739, 17 S.E.2d 878, 137 A.L.R. 1041. In Stewart v. Tams, 108 W. Va. 539, Pt. 3, Syl., 151 S.E. 849, this Court held: "The common law rule remains unchanged in this jurisdiction, that if there is a misjoinder of parties defendant in an action ex contractu, appearing on the face of the declaration, any of the defendants may raise that question on demurrer."
The other grounds of the demurrer thus become immaterial. The questions whether the declaration shows liability on the part of the defendant Pelfrey under the principle announced in Houston v. Lawhead, 116 W. Va. 652, 182 S.E. 780, and whether there is a misjoinder of parties defendant under the rule laid down in State ex rel. Shenandoah Valley National Bank v. Hiett, 123 W. Va. 739, 17 S.E.2d 878, are not raised or decided. Without further discussion of the other questions which may be considered as arising on said demurrer, the action of the trial court in overruling the same is reversed.