Majority
p. 41John D. Livingston agt. John McIntyre and Edwin Smith. Two causes between the same parties. December Term, 1845.
Headnote
A suit cannot be severed at the circuit, and an inquest taken against part of the defendants, where the cause was at issue against all of the defendants and might have been noticed for trial against all of them.Motion by defendants to set aside inquest in each cause, and subsequent proceedings for irregularity.
These actions were originally brought against Peter Com-stock and Elisha A. Martin, as drawers of two several drafts, and the defendants as the acceptors; the defendants were sued as copartners, under the name of McIntyre & Smith, and tlie other defendants under the name of Comstock & Martin ; all the defendants appeared and pleaded in the causes, and issues were joined therein on the 9th of March last. Plaintiff’s attorney noticed- the causes for trial and inquest, against McIntyre & Smith only, and took an inquest against them on the 27th June last. Defendants’ attorneys stated that the cause was ready for trial against all the defendants after the last issue was joined on the 9th of March last.
M. T. Reynolds,, defendants' counsel.
Johnson & Watebs, defendants' attorneys.
P. Caggeb, plaintiff's counsel.
Wm. 0. Schuyleb, plaintiff's attorney.
Granted the motion with costs, on the ground that *the suits -could not be severed at
p. 42
the trial, and inquests taken against two defendants only; they should have been noticed for trial and inquest against all the defendants’ issues having been joined as to all.