Thomas v. Van Ness

Headnote

The defendants were, by mistake, treated by the plaintiff as joint debtors; part being returned by the sheriff as taken, and part not found. He declared against those taken as impleaded with the others. The defendants taken, demurred to the declaration specially; and the plaintiff joined in demurrer. This was before Whitaker v. Young, (2 Comen, 569,) was decided. On learning this decision, the attorneys stipulated that judgment should be entered for the defendants on the demurrer, with leave for the plaintiff to amend on payment of costs* as if the cause had been argued and decided in favor of the defendants on the demurrer. This stipulation was filed, and a rule entered according to it; and the costs paid. The plaintiff then issued writs of capias ad respondendum simul cum; and brought in the other defendants, the other heirs and devi-sees. He then amended his declaration accordingly; and offered a copy with notice of the rule to plead to the attorney of the heirs, &c. first brought into court. This he declined receiving, on the ground that the amendmeniwas not warranted by the rule.

This question (among others) between the attorneys was now submitted, by consent, to the court.

The plaintiff, by mistake, proceeded against heirs and devisees as joint debtors, within 1 R. L. 521, s. 13; the process being served on some of the defendants ; against whom the plaintiff declared. The defendants served with process, demurred; upon which the parties agreed that judgment should be entered against the plaintiff on demurrer, with leave to amend on payment of costs, as if the cause had been argued and decided for the defendants on the demurrer; held, that the plaintiff might then bring in the other defendants on si- mul cum process ; and declare and proceed against the whole-