Hall v. Rochester — 3 Cow. 374

Majority

p. 374

Hall against Rochester, Atkinson and Campbell.

Headnote

In assumpsit against three, on a joint and several promissory note, two pleaded that the note was fraudulently and oppressively obtained, upon which the plaintiff enter ed a nolle prosequi as to them, and took judgment by default against the third ¡held, that the action was discontinued as to all.

In actions ex contractu, against several, unless the defence as to one go merely to his personal discharge, . a nolle prosequi cannot be-entered as to him, and the suit he continued as to another.

Assumpsit, on a joint and several promissory note—payee against the makers. The first count was on the note, and the second and third were the common money counts, and an account stated. Rochester and Atkinson pleaded nonassumpsit ; and, to the first count, that the note was fraudulently and oppressively obtained, setting forth the particulars. Upon the receipt of this plea, the plaintiff entered a nolle prosequi as to them, and took a judgment by default against Atkinson, which it was now moved to set aside as irregular. .

E. Pomeroy, for. the motion,

said the nolle prosequi was a discontinuance as to all the defendants. (Noke v. Ingham, 1 Wills. 89. Hariness v. Thompson et al. 5 John. Rep. 160 . Morton v. Croghan, 20 John. Rep. 122 , per Spencer, Ch. Jó 1 Chit. Plead. 546. Tidd, 632.) The result of these authorities is, that in actions in form ex delicto, the plaintiff may enter a nolle prosequi as to one of several defendants j but in actions ex contractu, unless the defence go merely to the personal discharge of one, a nolle prosequi cannot be entered as to one and the suit be continued as to the other, but the nolle prosequi discontinues the suit as to the whole-Actions ex contractu, against several, are joint. The plaintiff, to sustain his action, must shew a joint contract made by

p. 375

all; and a plea, by one, to the action of the writ, enures to the benefit of all the defendants. (1 Chit. Pl. 31,32. Boulter v. Ford, 1 Sid. 76. Sheriff v. Wilkes et al. 1 East, 52. Gray v. Palmer et al. 1 Esp. Rep. 135.) That the note is joint and several, makes no difference. The plaintiff has elected to proceed against the defendants jointly; and, for the purposes of this question, the demand must be treated as a joint one.

F. M. Haight, contra,

said there was ho direct authority for this application. In Morton v. Croghan, cited by the defendants’ counsel, the decision is put on the ground that the defendants were all necessarily parties. Accordingly, per Spencer, J. “ Where all the defendants are necessarily parties, and the plaintiff was obliged to make them parties, as in a proceeding against terre-tenants, a discontinuance as to some is a discontinuance as to all.” Here the action was not necessarily joint. It might have been several; and it is the same thing to the defendant (Atkinson) as if he, alone, had been sued.

The distinction contended for, by the defendants’ counsel, is fully borne out by the cases to which he refers.

Motion granted.