Majority
p. 642Scott and others vs. Standart. Albany, March, 1839.
Headnote
Where, under the acts of 1832 and 1835, authorizing all or any of the parties to a bill or note to be included in one action, a suit is commenced against ■the maker and endorser of a note, and only one of the defendants is brought into court, the plaintiff may declare against him alone, the same as if the other defendant had not been named in the process.The defendant Standart was the maker, and one David Griffith was the endorser of a promissory note on which the action was brought. The suit was commenced by capias against both maker and endorser under the act of 1832, with an ac etiam clause for the purpose of holding them to bail, they being non-residents of the state. Standart was arrested and held .to bail, and Griffith was returned by the sheriff non est. The plaintiffs thereupon declared on the note against Standart alone, who now moves to set aside the declaration.
I. Cagger, for defendant.
I. Williams, for plaintiffs.
By the Court,
This was not the case of a joint contract, and the plaintiffs could proceed only against the party who had been brought into court. If they could not declare against him alone, they had no alternative but to abandon a suit which had been properly commenced. We have already gone very far in allowing a severance, where the plaintiff proceeds under the statute authorizing the holder to include all the different parties to a note or bill in one ac
p. 643
tion. Fuller v. Van Schaick, 18 Wendell, 547. Clark v. Parker, 19 id. 125. I think a severance of the action should be allowed in this case. It forms a necessary~xception to the general rule, that in bailable actions the declaration must follow the process.
Motion denied.