Majority
p. 495Bancroft against Wilson and others. cited Yates v. Lansing & others, ( 8 John. 289 .)
Headnote
Motion for judgment ai in case of non-suit cannot be made by one of several defendants without the concurrence of the others.Where all the defendants move for judgment, if it appear that either has no right to move, as if judgment be against him by default, the motion will be denied as to all.
J. Dickson moved for judgment as in case of nonsuit, for not going to trial at the last Ontario Circuit.
P. S. Parker, contra,
read an affidavit showing that two of the defendants had pleaded their discharge under the “ act to abolish imprisonment for debt in certain cases,” and no other plea, to which the plaintiff had replied, confessing the pleas and praying judgment, to be levied not on the persons of the defendants but on their property. The defendants all joined in this motion.
Parker
No issue being joined as to two defendants is a fatal objection. Á motion for judgment cannot be made by one of several defendants, without the concurrence of the others ; and it follows, that where all join, and it appears that one or more of the defendants have no right to move, the motion must be refused equally as if made by a part only of the defendants. The reason why one cannot non-suit is, that the plaintiff cannot be nonsuited as to one defendant, and retain his suit as to the other
Motion denied.