p. 514The defendants, Peck, Littlejohn and Fitzhugh, were sued in assumpsit as joint debtors. After issue joined, the defendant Fitzhugh, at the circuit, pleaded puis darrein continuance his discharge under the bankrupt act, which had been obtained a few days before; and the plea was duly verified. The defendants objected that the plaintiff could not proceed to trial; and the plaintiff answered that he did not intend to take issue upon the plea, but confessed the same to be true. The judge thereupon allowed the plaintiff to proceed with the trial, and a verdict was taken against the defendants Peck and Littlejohn, who declined appearing. The plaintiff inserted the plea puis in the.record, confessed the sameto be true, entered a nolle prosequi as to the defendant Fitzhugh, and perfected a judgment on the verdict against the two other defendants. A motion was now made in behalf of the defendants Peck and Littlejohn to set aside the verdict and judgment for irregularity.
A. Taber, for the motion,
said the plea puis could only be answered in bank, and the plaintiff was therefore irregular. He cited Pascall v. Horsley, (3 Carr. & Payne, 372;) Thompson v. Percival, (2 Barn. & Ad. 968;) Grah. Prac. 298; Com. Dig., Abatement, (I 24); Tidd’s Prac. 901, 903.D. Cady, contra,
cited Judson v. Gibbons, ( 5 Wend. 224 ;) Hartness v. Thompson, ( 5 John. 160 .)A plea puis darrein continuance, when pleaded at the circuit, cannot be answered there either by replication or demurrer; but must be returned into this court and answered here. And, according to the Fnglish practice, the plaintiff cannot confess the plea at nisi prius, and then go on with what may remain of his cause. But this practice leads to useless expense and delay, without answering any valuable end; and I think we ought not to follow it. Where one of several defendants puts in a plea puis at the circuit, setting up some matter in bar going only to his personal discharge, without affecting the action as against the other de
p. 515fendants, I see no good reason why the plaintiff should not he at liberty to confess the plea at once, enter a
nolle prosequi as to the particular defendant, and proceed to trial against the others. And so where the defendant pleads some matter which goes only to the remedy—as a discharge from imprisonment—the plaintiff may confess the truth of the plea at the circuit, and proceed with the trial. This may be done whether there are several defendants, or only one. Such a plea, when confessed, does not affect the trial or verdict, but only the judgment and execution. So long as
nisi prius records were in use, there was a difficulty in point of form in allowing a
nolle prosequi as to one defendant at the circuit and then going on against the othei-s ; for the judge was only authorized to try the issue contained in the record. But' that difficulty no longer exists.
The plaintiff should have drawn up the confession of the plea and the nolle prosequi in writing, and served a copy before proceeding to the trial. There is no longer any such thing as pleading ore tenus in courts of record. But this objection was not taken at the circuit, and ought not to prevail now.
The question whether the plaintiff could safely confess the plea and allow Fitzhugh to go without day, or whether he should have replied or demurred to the plea and left Fitzhugh to be acquitted of the action by the verdict of the jury or the judgment of the court, if entitled to it, has not been made; and nothing is therefore decided on that subject.
Motion denied.