Majority
p. 98Robert G. Shawe and Christopher Barker against Robert Colfax, William Colfax and Alexander Richards.
Headnote
If all the defendants in a suit be not brought in, and those who are, give a rule to declare, the plaintiff must either do so or obtain a further time, to entitle to which from time to time, shewing that he is proceeding to outlawry againstON the last day of February term, the defendants, Robert Colfax and Alexander Richards, entered a default against the plaintiffs for not declaring.
Hopkins
moved to set it aside, together with the subsequent, proceedings on these facts.
In Mo-oember term last, the capias issued, was returned “ taken,” as to Robert Colfax and Alexander Richards, and “ not found,” as to William Colfax, to arrest whom, several ineffectual attempts had been made, as he resided in JVew-Jersey, and either did not come into Hew-York at all, or did it so secretly as to avoid the process sued out, but an that account, the idea of proceeding
p. 99NEW-YORK, May, 1805.
, those not found, is sufficient: but if he do neither the one nor the other, he will be liable to a nonpross by those brought in.
it him, was not relinquished, on the contrary, an alias capias ⅛ 3 ícen sued out, under the belief, that he had received informa-of the former writ, but, before it was issued, a rule to declare .inst the other two defendants had been served, upon which the ..resent default had been entered.
He argued that at common law, the plaintiff could not pro-ceed till all the defendants were brought in; and though by statute,[1] a different practice might be pursued, still it was at the election of the plaintiff', and therefore, no advantage could be taken of the omission. For this he cited Tidd’s Practice 376 — 9.
D. A. Ogden, contra.
Had the proceeding been by original, the authority relied on might have applied, but as it is by bill, the plaintiffs have placed themselves in the same situation, as if all the defendants had appeared. If necessary that ail the defendants should be brought in, the plaintiffs should have obtained an order to enlarge the time for declaring. According to the practice now contended for, a defendant may be kept under bail for his life.
Hopkins in reply.
Whether the proceeding is by bill, or original, is immaterial. The distinction is whether the suit be in tresspass or on contract. In the former they may sever, in the latter they cannot; as they therefore must be proceeded against jointly, they cannot seperately nonpross. Suppose the only solvent defendant not to be taken, must a plaintiff go on against a person from whom nothing can be recovered ? The inconvenience alone, of such a principle, is a sufficient argument against it.
The plaintiffs should have applied for further time to declare, and shewn either that they were endeavouring to bring all the defendants into court, or pursuing one to outlawry. That would have been a good ground to enlarge the rule from time to time. Not having done so, and being authorised by our act to proceed against the defendants brought in, the plaintiffs were liable to be nonprossed equally as if all the defendants hud been before us.