Montgomery v. Hasbrouck — 3 Johns. 538

Majority

p. 538

Montgomery against Hasbrouck and others.

Headnote

In an action, not bailable, or where no ac insertecWn the writ, any numants may be joined m one writ, and the plaintiff may, afterwards, declare against those brought into court, severally, or against some, omitting the others.

A CAPIAS AD RESPONDENDUM was issued, at , the suit of the plaintiff, against James Hasbrouck, Conrad Elmendorf, P)aniel Lewis, and seven others, to answer in a plea of trespass, returnable at the last May term. The writ contained no ac etiam clause, and all the defendants, except Lewis, having been taken, their appearance was in-r ° r dorsed on the writ, as is usual, where defendants are not held to bail,

A declaration was filed against all the defendants, who Had thus indorsed their appearance, except Conrad E. ■ Elmendorf; and a default and interlocutory judgment, was afterwards duly entered, for want of a plea.

C. E. Elmendorf, for the defendants,

now moved to set aside the proceedings in the cause, for irregularity. He contended, that there was a variance between the writ and the declaration, as the name of one of the defendants taken on the capias had been omitted in the declaration. He cited 1 Sellon, 255. 2 Wils. 85.

Slosson, contra.

The mode of proceeding by bill in trespass, is derived from the practice of the English court of K. B, where it has been long settled, that when the

p. 539

defendant is once brought into court by the process in trespass, you may declare against him for any other species of injury.^[4] The object of the process is merely to bring the party into court. In all actions not bailable, or where the cause of action is not specified in the writ, the plaintiff may proceed against all or any of the defendants brought into court.

NEW-YORK,

Nov. 1808.

In the case of Holland v. Johnson,^[5] the court of K. B. in England, decided, that the plaintiff might join four defendants in one writ, and sever the subsequent proceedings against them. And in Stables v. Ashley and others,^[3] in the C. B. the court said that they would not countenance such an objection, as is now made, unless they were bound by the strictest authority ; and they held the distinction to be, between process bailable, and not bailable ; and that in the latter, the plaintiff may declare against one defendant, though several are named in the writ. This distinction w$is also recognised by the court of K. B. in the case of Yardley v. Burgess.^[4] In Allington v. Valvasor,^[5] where four defendants were arrested on the latitat, and appeared severally, Ch. J. Holt held, that the plaintiff might declare against them severally.

Where the process is not bailable, or the cause of action is not specified in the writ, the plaintiff may join any number of defendants in the writ, and declare against them severally. There can be no inconvenience in this practice. If either of the defendants is not declared against, and he wishes to get rid of the action, he must proceed by obtaining a rule against the plaintiff to declare against him, or be nonsuited.

Rule refused.