Opinion
December Term, 1817.
Dropping any part of a demand, or some of the persons mentioned in the previous part of the proceedings, is a discontinuance, yet it is aided by statute after judgment. (Citing 32 H., VIII., 30; 4 5 Anne, 16. And see Code, 2872-2874.)
Thus, if the writ be served on two, and only one be declared against, this is a discontinuance, of which the party declared against may take advantage by special demurrer for a variance; but he can not move in arrest of judgment on that ground, for the objection comes too late after judgment. (But see Young v. Stringer, 5 Hay., 30.)
But a plea by both defendants to a declaration against one only, is a plea, which, as it reintroduces the dismissed defendant, the plaintiff is not required to contest, and will be stricken out on motion.
[Cited in: 7 Lea, 691.]
William Trigg and Abraham Trigg had recovered a judgment in the County Court of Sumner, against William and John Bayee, by attachment. William Bayee removed the cause by certiorari to the Circuit Court. John Payton, Sen., and Richard Bayee were his sureties on the bond for the certiorari, which was afterwards dismissed by the Court. This is an action of debt commenced against both the sureties in the certiorari bond. The writ issued the 6th of April, 1816, and was executed on both, and a declaration in the usual form was filed against Payton alone.
Both the defendants appeared and craved oyer of the writ, declaration, and bond, and also of the condition; and for plea say that, notwithstanding the certiorari mentioned in the condition, was dismissed at April term, 1815, of the Court for want of sufficient matter set forth to maintain the same, yet before suing out the original writ in this cause; to-wit, on the 25th of November, 1815, another certiorari and supersedeas issued to stay all further proceedings in the same cause. Which last mentioned writ of supersedeas remained in said court undetermined on the day on which the original writ in this cause issued. All which they are ready to verify. Wherefore they pray judgment, whether the original writ ought to abate. On the argument day the counsel for the plaintiff moved the Court to disallow the plea and enter judgment, which motion was sustained by the Court.
At the next term the defendant John Payton having failed to file a plea to the merits, judgment was entered against him for $1,000, the penalty of the bond of which the plaintiff released $621.70.
The defendant filed reasons in arrest of judgment.
First, that the writ issued against Richard Bayee and John Payton, and was served in both, and the declaration is against John Payton only. Secondly, because there is a variance between the writ and declaration. The reasons in arrest of judgment were overruled, and the cause was removed to this court by writ of error.
Now it is true that a motion to arrest judgment comes too late after judgment, and dropping any part of the demand, or some of the persons mentioned in any previous part of the proceedings, is a discontinuance, yet that is aided by the statute 32 H. VIII. c. 30, and 4 5 Anne, c. 16, both as to judgments entered upon verdicts and those entered upon general demurrer, confession, non dicit, non sum informatus, and writ of inquiry.
As to the plea in abatement by the two defendants served with process after a declaration against one only, the plaintiff was not bound to contest with the one not declared against; and of course not bound to receive a plea in which that one was a party. Since the facts stated in that plea, if received, must either be admitted or denied by the plaintiff, and that would re-introduce the dismissed defendant. The Court were right therefore in rejecting that plea. The defendant, retained in court and declared against by the plaintiff, could only take advantage of dropping the other, that being to his prejudice both as to the defence which now he is called upon to make with out the assistance of his companion; and also as to the recovery, which, if effected, he will now have to bear alone. The defendant declared against, however, did not attempt to complain of this omission; and the case is no more than this: that two are sued and served with process, one only declared against, and judgment against him by default. Here indeed is a discontinuance, but not fatal, as it would have been on special demurrer for the variance. The discontinuance is now helped, and we must proceed as if the party against whom the judgment was rendered, had been originally proceeded against alone. Str. 473, 5 C. D. Pleader, E. 1, F. 4, Q. 3, W. 2. The law will not after judgment help him, by reversing the same for error in this respect, who would not help himself in time by a special demurrer for the variance. It is enough that the opportunity has been offered to save himself from the inconvenience of being proceeded against alone, and hath not been used.
Affirm the judgment of the Circuit Court.