
    Yates against Lansing and others.
    1» a joint actio-, t gainst three -ie. buffered judgment to pass
    fry default, and-it was held that the other defendants could not obtain n judgment as id: Tase of nonsuit, for not proceeding; to trial; as the plaintiff, iu such case, cannot be nonsuited.
    THIS was a joint action of trespass against three defendants. A judgment by default, for want of a plea, was obtained in August, 1810, against one of the . fendants. (S. Southwick.) The other two defendants x J pleaded.
    A motion was now made by Lansing, one of the other defendants, for judgment as in case of nonsuit, for not bringing the cause to trial.
    It appeared that in August term last, the venue had been changed from New-York to Albany; but that the declaration filed in the cause was not altered or amended accordingly, nor was any new declaration required or served.
   Per Curiam.

As this was a joint action of trespass against three defendants, and one suffered judgment by default, the other defendants cannot obtain judgment, as in cases of nonsuit, for the plaintiff cannot be nonsuited in such a case. He cannot be out of court as to the defendant who suffered judgment by default. The authorities to this point are, Weller v. Goyton and Walker, (1 Burr. 358.) and Harris v. Butterley, &c. (Cowp. 483.) It becomes, therefore, unnecessary to examine whether the defendants are prevented, by the circumstances attending the change of the venue, from making the motion at present.

Motion denied.  