
    [Chambersburg,
    October 18, 1825.]
    DOWNEY against The Farmers and Mechanics’ Bank of Greencastle.
    
      m ERROR.
    Suit on a joint and several bond against both obligors, one of whom only was served, and judgment had against him. Such judgment is a bar to another suit, against the obligor not served.
    A legislative remedy ought to be provided for cases of this description.
    This writ of error was to the Court of Common Pleas, of Franklin county, and the plaintiff in error was defendant below.
    It was an action on a single bill, by which William Downey, the defendant below, and a certain George Hartman, bound themselves jointly and severally, to pay the plaintiffs the sum of one hundred and sixteen dollars and eighty cents, sixty days after date. Before the bringing of this suit, the plaintiffs brought a suit on the same bill, against Hartman and Downey, jointly. The writ was served on Hartman, but non est inventus was returned, as to Downey. Hartman entered special bail, and judgment was obtained against him, but no further proceedings were^ad, in that suit, against Downey. The question was, whether the present action, against Downey alone, can be supported.
    
      Findlay, for the plaintiff in error,
    contended that judgment having been obtained against one obligor in a joint suit, no action would lie against the other, and the plaintiff, by bringing a joint suit on a joint and several bond, had elected to consider it as joint. In such case, the judgment against one is a merger of the debt, and a perpetual bar to another suit. He relied on M'Fall v. Williams, 3 Serg. & Rawle, 280. Robertson v. Smith, 18 Johns. 478. Willing v. Consequa, 1 Pet. 301. Reed v. Garvin’s Executors, 7 Serg. & Rawle, 354. 1 Chitt. Plead. 30. 1 Saund. 291. Note E. 6 Co. 6. Haydon’s Case.
    
    
      
      M‘Culloch and Dunlop, contra,
    insisted that the court would lean against the extinguishment of a debt, where there has been no satisfaction. By our practice, when non est inventus is returned as to one defendant in a joint writ, it is equal to a discontinuance'as to him. In Purviance v. Dryden, 3 Serg. & Rawle, 402, the Chief Justice says, that the writ, being issued against two, one of whom is not summoned, is carried on against the other party alone. In England the process of outlawry is employed, and satisfaction may be had out of the party’s estate; but'in Pennsylvania there is no outlawry in civil cases. They further contended, that even if this matter were a defence, yet it is so only where it is properly pleaded. But under the plea of payment with leave, (which was the plea here,) this evidence was not admissible. They cited, Sheehy v. Mandeville, 6 Cranch, 253. Moss v. Moss’s Administrators, 4 Hen. & Munf 311. Rules of the Court of Common Pleas, p. 37, sect. 50. Pleading. Rules of the Supreme Court, sect. 37, 39. 1 Dall. 17. 1 Yeates, 571. Whart. Dig. 467. No. 84, 88. 1 Binn. 164, 291. Griffith v. Chew, 8 Serg. & Rawle, 25.
    
   The opinion of the court was delivered by

Tilghman, C. J.

A joint and several obligation may be proceeded on, either as a joint or several contract, at the choice of the obligee. But having treated it as a joint contract, by commencing a joint action against both obligors, he is bound by his election, and cannot afterwards consider it as several. The plaintiffs have embarrassed themselves, therefore, by their first action, in which both obligors were sued jointly. And this embarrassment is not removed by the circumstance of one of the obligors not having been taken; for it was still a joint action, although, by along established practice in this state, the plaintiff suggesting in his declaration, that one of the defendants was not taken, may proceed to judgment against the other. In England, where one is not taken, the plaintiff must proceed to outlawry against him, before he can go on against the other. But having obtained judgment against the one who was taken, he never after can have a separate action against the other, on the same bond. In the present ease, after the joint action brought by the plaintiff, the bond is to be taken as joint, only, and can never after be proceeded on as a several obligation. Then, judgment being obtained against one of the obligors, the bond was merged as to him, and if he should after-wards be sued on the bond he might plead the merger in bar. So, if an action is brought against the other obligor, he may plead, that by the judgment against his co-obligor, the bond was extinguished, and being extinguished as to one of the joint obligors, it is extinguished as to both. For the law, as I have laid it down, I refer to one Chitty on Plead. 30. 1 Saund. 291, note E. 18 Johns. 471. Cro. Jac. 73. Brown v. Warton, 4 Com. Dig. Action, K. 4. The same principles may be collected from the case of M‘Fall v. Williams, in this court. 2 Serg. & Rawle, 288. There, an action of assumpsit was brought on a joint contract against two defendants; one of whom confessed judgment for a certain sum. Afterwards the other defendant entered special bail, appeared, and pleaded the general issue, and a verdict was found against him for a different sum from that which his partner had confessed. It was held, that no judgment could be entered on that verdict, because there cannot be two judgments for different sums on a joint contract. It is much to be wished, that the legislature would afford a remedy in a case which loudly calls for it. It is unjust and unreasonable, that one of the obligors should be exempt from payment, when the obligee has done all in his power to bring him to justice. Having no process of outlawry, we are in a worse situation than they are in England. For there, the plaintiff may proceed to outlawry against the defendant, who cannot be taken, and if he has any effects, the king, to whom the forfeiture accrues, always permits the plaintiff to obtain satisfaction from these effects. But, with us, the plaintiff is absolutely without remedy. The court felt a strong inclination to assist the plaintiffs in this case, but, upon looking well into it, the law was found to be too strong against them. We must not usurp the legislative power, however great the temptation. It is our opinion, that there was error in the charge delivered to the jury by the president of the Court of Common Pleas, and therefore the judgment must be reversed.

Judgment reversed.  