
    [Philadelphia,
    January, 25, 1830.]
    BEIDMAN and others against VANDERSLICE and others.
    IN ERROR.
    Eii assumpsit, or other action upon contract against several defendants, the- , plaintiff cannot enter a nolle prosequi, as to one, unless it be for some matter which may be pleaded as a personal discharge. Thus, if a feme covert be one of the defendants, a nolle prosequi may be entered as to her.
    If an appeal from an award of arbitrators be made without the affidavit required by law, the irregularity is waived by the opposite party taking the costs out of court.
    On a writ of error to the Court of Common Pleas of Philadelphia county ^ the facts appeared to be these:—
    On the lst'of December, 1827, an action was commenced before Isaac Boileau, Esq'., a justice of the peace, by Undrew Vanderslice and others, the defendants in error, against Catherine Beidman and- Michael Faunce, and Elizabeth his wife, the plaintiffs in error, “on a plea of debt or demand arising on contract.” The claim was for goods sold and delivered. On the 26th of December, 1827, judgment was rendered for the plaintiffs, from which the defendants appealed to the court of Common Pleas, to March Term, 1828. On the 18th of Jlpril, 1828, the plaintiffs entered a nolle prosequi, as'to Elizabeth-Faunce, one of the defendants; and on the 11th of the following November took out a rule of arbitration. ' On the 3d of December, 1838, the arbitrators made an award in favour of the plaintiffs, from which one of the defendants, on the. 18th of the same month, appealed, paid the costs, and entered into the proper recognizance; but filed no affidavit as required by law.
    On the 20th of December, 1828, the plaintiffs obtained a rule on the defendants to show, cause why the costs paid in on the appeal, should not be taken out of court; and on the 27th of the same month, they took the costs out of court. No further proceedings were had until the 12th of January, 1S29, when the plaintiffs applied to the court for. a rule to show cause “ why the defendants’ appeal should not be dismissed for the want of an affidavit, on appealing.” This rule the court made absolute, and ordered the appeal to be dismissed.
    In these proceedings^ two errors were assigned: — ■
    1. 'That the entry of a nolle prosequi, as to orie of the defendants, vitiated the proceedings, and the-action, and judgment could not be sustained. - . . ’ '
    2. 'That the Court'of Common Pleas erred, in making-absolute the rule to dismiss the appeal, because the plaintiffs had waived the irregularity by receiving the costs, and by .delay.
    
      Miles, for the plaintiffs in error, contended,—
    1. That, although in actions of trespass against several, the plaintiff might enter a nolle proseqiii, as to one, yet, in actions.arising ex contractu, a nolle prosequi, as to one, discharged all; and cited 1 Peters’s Pep. 46. 20 Johns. Rep. 126.
    2. That the plaintiffs having applied for and received the costs, without any reservation of right, and having been guilty of unreasonable delay in applying to have the appeal dismissed,, had waived the'irregularity in taking the appeal. Mayes v. Jacoby, 8 Serg. & Rawle, 526.
    
      Campbell, for the defendants in error, being’desired'by the court to confine himself, to the last point, said, that, in fact, the money was not taken out of court, and it did not appear by the record that it was.
   Smith, J.,

(after stating the facts and the errors assigned,), delivered the opinion of the court, as follows: — •

As to the first error. It has been long settled, that a nolle prosequi does not amount to a retraxit, and that it may be entered as to a part of the suit, or as to one of the defendants,'where the.actibn is in its nature .joint and several, or where the defendants sever in their pleas. ' Thus, in- trespass, or other action' founded upon tort, the plaintiff may enter it at any time before final judgment as to' one or more of the defendánts, and proceed against the others. In truth; it amounts only to an agreement not to proceed in the action against the particular person, and is.entered against him for the pur pose of obtaining substantial justice. The cases of Pugsley’s Executors v. Pell and Wife, 20 Johns. Rep. 126, and of Minor et al. v. The Mechanics’ Bank, 1 Peters’s Rep. 74, are. express on this point. But, in assumpsit, or other action upon contract against several defendants, the plaintiff cannot e'nter a nolle prosequi, as to one, unless it be for some matter which may be pleaded in his personal discharges; such as ne tonques executor, or, in England, a certificate of bankruptcy; because the contract being joint, the plaintiff could do no otherwise than bring his action against all the parties; and -he ought not, by entering a nolle prosequi, as to one, or more of the defendants, to prevent those against whom he might recover from calling upon the others for a rateable contribution. Besides, there would be manifest inconsistency in compelling the plaintiff to join all .the parties to such a contract, in bringing his suit, and allowing-him afterwards, in the progress of the cause, to sever them by a nolle prosequi.

The present action was founded on a joint contract; but one of the defendants was Elizabeth Faunce, & feme covert, who was not able to enter into a contract, and ought not, therefore, to have been joined. She was never under any responsibility, nor could she ever be called upon for contribution. The. coverture was proper matter for a plea discharging her from the action, and, consequently, the nolle prosequi, as to her, was perfectly legal.

We are accordingly of opinion, that the first objection, assigned as error, is not sustained. . .

It is, however, important to consider, whether the second objection be sustainable or not, as informal or irregular appeals are of frequent occurrence. It is true, that in this ease, the affidavit, requisite on entering an appeal was not filed or made) and, therefore, in this particular, the appeal was not in compliance with the act of assembly,.which requires, that the party appealing, shall swear, or affirm, that it is not for the purpose of delay such appeal is entered, but because such party firmly believes injustice has been done;” and I am notavvare that this precise point'ha's ever been, in totidem verbis, decided in this court. Yet, it has often been held, that irregularities and neglect of the preliminary requisitions of the law, in taking appeals, are cured by the acquiescence of'the adverse party, or by acts which were considered as equivalent to a waiver of his objection. In Mayes v. Jacoby, 8 Serg. & Rawle, 526, it was remarked, that there was no difference between an appeal taken out of season (as was the case there) and an appeal taken without having paid costs, made the requisite affidavit, or given the proper security; and any and all of these, may be waived.. In that case, there was a delay of three years. In the. case of Cameron et al. v. Montgomery, 13 Serg. & Rawle, 128, the delay was more than a year; and in Shank v. Warfel, 14 Serg. & Rawle, 205, it was nearly two years. In each of these cases, it was considered, that the appellee came too late with, his objection; though in the first cited case, there were other circumstances from which, as well as the delay, the defendant’s acquiescence in the appeal was inferred, such as his pleading to the narr., joining issue, and taking depositions under rules entered for that purpose. The usual evidence of acquiescence and waiver, consists in an unreasonable delay to make the objection, or in proceeding with the action, as if no such objection existed. The plaintiff, having entered a rule of arbitration before the time for putting in special bail had arrived, has been held tp have waived the special bail. Phillips v. Oliver, 5 Serg. & Rawle, 419: So where he filed a statement, appeared by his attorney, and pleaded his cause before the referees, he was considered as accepting the defendant’s appearance without bail. Maus v. Sitesinger, 2 Serg. & Rawle, 421.

The act of the 20th of March, 1810, section 11, provides, that no appeal shall be-allowed, until the appellant pay all the costs, which may have accrued on such suit or action. In the present case, the defendants paid the costs into the office of the prothonotary, on taking their appeal, but omitted to make the requisite affidavit. The plaintiffs apply for those costs, and take them out of court, and then, after all this, turn round, and ask the court to dismiss the appeal, because there is no affidavit. We think, that their receipt of the costs was as clear an indication of their intention to overlook the irregularity on which their motion was founded, as could have been exhibited. Had they purposed to insist upon the objection afterwards taken, they ought not to have touched them. We are accordingly of opinion, that the objection was waived by taking the costs, and that the appeal ought not to have been dismissed. The judgment of the Court of Common Pleas is therefore reversed, with directions to reinstate the appeal.

Judgment reversed.  