
    *Bush v. Campbell.
    June Term, 1875,
    Wytheville.
    I. Pleading—Non-Joinder of Parties—Failure to Hake Objection—Waiver.—In an action of debt upon a bond against live persons, the plaintiff indorses on the process, “Not to be served on G,” who was one of the live; and he is not brought before the court. There having been two continuances of the cause, and a verdict and judgment for plaintiff against B, one of the defendants, and he having moved for a new trial, and also in arrest of judgment, without at any time objecting to the failure of plaintiff to make G a party; and it appearing further from the motion in arrest of judgment, that G had absconded and left the state before the suit was brought, 15 must be held in the appellate court, to have waived the objection; and it is too late to make It in that court.
    a. Practice—Judgment for Some and against Other of the Defendants.—In an action of debt upon a bond against live persons, upon one of whom the process Is not served by direction of the plaintiff, the four plead usury in the bond, and three of them jilead severally non est factum. On the trial the jury find in favor of the three defendants, on the jilea of non est factum; but cannot agree on the plea of usury. There is a judgment in favor of the three, and the case is continued as to the fourth. Afterwards there is a verdict against the fourth; and he moves in arrest of judgment. Held : Under the statute, Code of 1819. ch. 177, § 19, there may be judgment in fayor of the three at one time, and a judgment in favor of the jilaintiff against the fourth defendant at another time.
    3. Same—Under Code of 1849.—The act, Code of 1849, ch. 177, § 19, applies to actions on contract against two or more defendants, where the defense of some of the defendants is personal to themselves, though that defense is, that they never were parties to the contract sued on, as non est fact/um.
    
    
      4. Same—Plaintiff's Right to Proceed against Non Residen t Defendants, after Judgment Rendered in Favor of Other Defendants.—Though in such action the parties sued live in different counties, and the only parties who live in the county where the suit is'brought, have a verdict and judgment in their favor on their plea of non est factum, the plaintiff may still proceed In that suit against the other parties who do not reside in the county.
    *5- Same—Fraudulent Attempt of Plaintiff to (live Jurisdiction to the Court.—If a plaintiff, in order to give jurisdiction to the court, in a case where defendants live in another county unites in the action, a party who he knows is no party to the contract, the court will on motion dismiss the suit with costs.
    On the 24th of April 1858 Beroy Campbell sued out of the clerk’s office of the Circuit court of Roanoke county summons against ffm. Gish, George Gish, fm. H. Fleshman, David H. Gish and Robert Bush, jointly in debt for $3,000, which were directed severally to the sheriffs of the counties of Roanoke, Bedford and Franklin; that directed to Roanoke was endorsed, “Serve only on George Gish and David H. Gish, ’ ’ and was returned executed; that directed to Bedford was endorsed, “Serve only on "William H. Fleshman, ’ ’ and was returned executed on him; that directed to Franklin was endorsed, “Serve only on Robert Bush,” and not being1 executed, an alias summons was directed to the sheriff of Franklin, endorsed in the same way, and returned executed on Bush. There was no other summons issued in the case; none was served on William Gish; nor was any return of any kind made as to him on any process. The declaration filed in the case avers that the said William Gish, George Gish, William H. Fleshman, David H. Gish, and Robert Bush had, by their writing obligatory, sealed with their seals, and dated the 22d of November 1857, bound themselves, &c., to pay the plaintiff, one day after date, the sum of $3,000; and the paper of which profert is made, purports to be the writing obligatory of said parties, sealed with their seals, and is in the form of what is commonly called a single bill. Office judgments were entered and confirmed at rules against all the parties on whom process had been executed; but no order was ever made as to William Gish, or any further step taken against him.
    *At the subsequent term of the court, after the office judgment was confirmed, George Gish, William H. Fleshman and David H. Gish, severally filed pleas of non est factum; and they jointly with Bush filed a plea of usury; to which several pleas the plaintiff replied generally; and issues were joined. At the ensuing term of the court a jury was empanelled to try all the issues joined in the casé; and, after retiring, returned into court with a verdict for the defendants, George Gish, William H. Flesh-man and David H. Gish, on their pleas of non est factum; which was received and entered by the court; and the jury declaring their inability to agree upon a verdict on the plea of usury, a juror was withdrawn, the jury discharged, and the case continued as to Bush; and a judgment was rendered for George Gish, William H. Fleshman and David H. Gish, on the verdict in their favor on the plea of non est factum.
    At the August term 1859, on the motion of the defendant Bush, the cause was continued, and at the March term 1860 it was continued generally. At the August term 1860 another jury was empanelled to try the 1 ‘issue joined, ’ ’ which returned a general verdict for the plaintiff for $3,000', the debt in the declaration mentioned, with interest from the 23d of November 1860. Bush thereupon moved to set aside this verdict; which motion was overruled. He then assigned errors in arrest <of judgment, and moved to arrest the judgment on the said verdict, on the following grounds:
    1st. The action is joint against William Gish, George Gish, William H. Fleshman, Robert Bush and David H. Gish; and upon pleas of non est factum, filed by George Gish, William H. Fleshman and David H. Gish, by the verdict of the jury, it has been established *that it is not the bond of said defendants; and as the declaration alleges a joint contract, no judgment can be given against the defendant, Robert Bush.
    2d. Neither Robert Bush or William Gish, at the time of the institution of the suit, were residents of the county of Roanoke, or since have been residents of said county; but at that time William Gish had fled from the country, having previously to his flight resided in the county of Bedford; and Robert Bush then was, and still is, a resident of the county of Franklin. And the process was not served on Robert Bush, in the county of Roanoke; so that the court has no jurisdiction of the action on the bond, since it has been ascertained that it is not the bond of the other defendants; and this objection could not have been taken by plea in abatement, as George Gish and David H. Gish, who were sued along with the other parties, were, at the time of the institution of the suit, residents of the county of Roanoke.
    But the court overruled the motion to arrest the judgment, and rendered a judgment according to the verdict. Bush thereupon applied to a judge of this court for a supersedeas; which was allowed.
    Early, for the appellant.
    I maintain that the judgment in this case was erroneous: First, because it was error in the court to have received a verdict as to a portion of the defendants, on a part of the issues joined. The general rule is, that the verdict must respond to all the issues. This rule is laid down very clearly in Robinson’s old Practice, vol. 1, page 355, and the cases there citéd; and it results from the very theory of jury trials. As is said by Judge Green, in the case of Gardner’s adm’r v. *Vidal, 6 Rand. 106, ‘ ‘there is no example of a verdict being set aside as to one issue, and suffered to stand as to others, and trying a cause by piecemeal;” and the converse of this proposition is equally true: there is no example of a jury being allowed to render a verdict on one issue when they cannot agree as to the others, and thus trying the case by piecemeal. This holds good, whether the several issues are made on different pleas by the same party, or separate pleas by different parties. I defy the production of a solitary case in which a jitry has been allowed to render a verdict on the issues joined on the part of a portion of the defendants, when they could not agree as to the issues joined on the part of the other defendants in a civil case. Even in criminal cases it required the special enactment, to be found in sec. 35, chap. 208, of the Code of 1849, page 778, to authorize a verdict as to one or more of several parties charged and tried jointly, and a trial as to the others by another jury, though it was never the law that, in criminal prosecutions, when several parties were jointly charged and tried, the acquittal of one was good cause to arrest judgment against the others who were found guilty. Suppose that in this case there had been a verdict against the three parties who pleaded non est factum, on that plea, would that verdict have been received, or, if received, have been allowed to stand, if there was no verdict on the issue^ joined on the plea of usury? Yet, if the jury could have rendered a separate verdict for the said defendants on the plea of non est factum, why could they not have rendered it against them on that plea as well?
    The position taken by the counsel for the defendant in error, that the plaintiff in error gave his assent to the withdrawal of a juror, after the partial *verdict was rendered, is* no answer to the point above made. The verdict had been received and entered, and when the jury declared their inability to agree on the other issue, the withdrawal was agreed to in order to relieve the jury from a useless and harrassing confinement until the adjournment of the court. That did not amount to an assent to or release of the error committed in receiving a partial verdict, nor did the subsequent continuance, on the motion of the plaintiff in error, amount to such assent or release, any more than a motion for a continuance after an erroneous ruling of a court in a case would amount to a release of the error. It may be contended with far greater force, that the withdrawal of a juror and the discharge of the rest with the consent of the plaintiff in the court below, without insisting upon a verdict upon all the issues joined, when he had the undoubted right to resist the reception of a partial verdict against him, amounted to such a sanction of the error committed as to waive all right to a judgment upon any subsequent verdict that might be rendered .on the other issue. He had a xfight to a wx’it of error on the judgment on that vex-dict, while the defendant, Bush, had no such x-ight, and he is not now asking for a new trial as to his codefendants, Fleshman and the two Gishes, but he insists that sxxch an error was committed in the reception of that vex-dict by the court, with the sanction of the plaintiff below, as to debar him from" any jxxdgment on the subsequent verdict. His remedy, if any, after submitting to the first verdict, was to dismiss his suit as to Bush and bx-ing a new suit against him individually, or against him and William Gish jointly. The cases of Boswell & al. v. Jones, 1 Wash. 322, and Guerrant v. Tinder, Gilm. 36, cited by counsel for the defendant in error, are not at all in *point. In each of those cases there was a verdict on all the issues joined, and as to all the parties, and they were actions for tort. If they had been actions on contract, unquestionably, as the law then stood, the defendants against whom the verdicts were rendered would have had a certain and sure remedy, by motion in arrest of judgment.
    I maintain that, according to the description of the writing obligatory on which suit was brought contained in the declaration, it was a joint obligation, and not joint and several. Without, however, entering into the learning on that subject, it is sufficient to say that the legal consequences are the same in this case as if the obligation sued on were purely a joint obligation. The plaintiff in the court below has thought proper to treat it as a joint obligation, and has brought a joint suit on it, and not several suits against each of the parties whose names appear to be signed to the obligation. In Parson on Contracts, vol. ii, page 12, it is said that “when the obligation is joint and several, an ancient and familiar rule of law forbids it to be treated as several as to some of the obligors, and joint as to the rest. The obligee has the right of choice between the two methods of proceeding; but he must resort to one or the other exclusively, and cannot combine both; he must proceed either severally against each, or jointly against all.” The same doctrine is laid down in Chitty on Contracts, vol. ii, page 1352, 11th American edition, in the following words: “On a joint and several covenant or contract the plaintiff must elect to proceed, either as if the contract or obligatory part of the instrument were joint, or as if it were several; so that the parties chargeable must be sued jointly or individually.” See also Bacon’s Abridgment, Obligation D.
    *Now the plaintiff below undertook to treat the obligation sued on as the joint obligation of the parties whose names were signed thereto, and yet on each one of the summons which issued, an endorsement was made which forbade its service on William Gish, whose name appears assigned first in order to the obligation. This, I maintain, was a fatal error, and would have afforded sufficient ground for arresting the judgment, even if the verdict had been against all the defendants who appeared and pleaded. In the case of Shields v. Oney, 5 Munf. 550, which was the case of an action against two partners, but the writ was directed to be served on one alone, it was held that the judgment must be arrested, though there had been no plea in abatement. See the opinion of Judge Roane in the case. It is submitted that this is a similar case, and that the same rule should hold in it that was applied in that case.
    There it was held that no plea in abatement was necessary, because the plaintiff showed by his declaration that he knew who the parties were, and it was held that as the writ was against two, but was served on one only, and the declaration was against both, the judgment must be arrested, though the Court of Appeals was inclined to the opinion that the evidence was sufficient to support the action. So here, where the summons was against five, and the declaration against all, but by the direction of the plaintiff the summons was served on four alone, it is submitted that the judgment ought also to have been arrested. If this is not so, then, notwithstanding the ancient and well established rule of law, that suit on a joint and several obligation must be jointly against all, or severally against each, a plaintiff might treat such an obligation as joint as to some, and several as to others, by simply endorsing *on the summons that it should not be served on a part of the obligors.
    The portions of the statute of Jeofails bearing on this question are as old certainly as the Code of 1792. See that Code, chap. 76, section 26, page 111, and the Revised Code of 1819, page 511, section 104. The other provisions incorporated into the Code, since the decision in Shields v. Oney, have no bearing whatever on the question. Nor does the provision, contained in the Code of 1849, chap. 172, sec. 49, page 653, affect it. That section is intended merely to give the plaintiff the right to proceed to judgment against one or more of several defendants jointly sued, when the process has not been served on a portion for causes beyond the control of the plaintiff. It could not have been intended to permit him to select which of several parties jointly bound he should proceed against, for such a permission to him would, in many cases, enable him to perpetrate the grossest injustice.
    I come now to the consideration of another question arising in the case, and that is as to the effect of the verdict on the plea of non est factum, as to a portion of the defendants, on the right of the plaintiff to a judgment against one of the defendants, sued along with the others. I presume it is useless to refer to the well established doctrine, as the law unquestionably stood before the provisions contained in the Code of 1849, chap. 177, sec. 19, page 674, were adopted; but I propose to consider how far that law has been modified by the said section. That section has never been construed by our Court of Appeals, though it has been referred to in the cases of Steptoe v. Read, 19 Gratt. 1, and Moffett v. Bickle, 21 Gratt. 280. In the first case the question was raised in the argument, but not decided, as it was not necessary to do so. It was contended in the *argument, that in an action of assumpsit against two, under the provisions of; sec. 19, chap. 177 of the Code, a separate judgment might be rendered against one only on proof that the other did not assume; and hence that the defendant, who was willing to withdraw his plea or confess judgment, was a competent witness to prove that he alone assumed the debt, and that the other did not assume. In his opinion Judge Joynes, to meet this view, undertook to .show that when a witness was admitted for one purpose, he was competent for all purposes, and that he might be examined, to show that the debt was illegal and void for i-easons going to the foundation of the action; and that thus a party might be admitted to give testimony which would defeat the action, not only as to his co-defendant, but as to himself. His doctrines on that point were entirely sound, and sustained by abundant authority, and if in delivering his opinion he seemed to admit that, in an action on contract against two, there might be a judgment on a contract made by one only, it was merely a concession for the sake of the argument. The sole question in the case was as to the admissibility of the testimony of the co-defendant of Steptoe, and Judge Joynes demonstrated the inadmissibility of the witness by showing that, if admitted for one purpose, he was admitted for all purposes. This left the question, arising under the section of the Code referred to, untouched.
    The case of Moffett v. Bickle was a joint action, under section 11, chapter 144 of the Code of 1849, page 582, against the maker and indorsers of a negotiable instrument, in which the undertaking of each party was several; and the court very, properly held that there might be a judgment in favor of the holder against the endorser to him for a ^valuable and legal consideration, though the other parties might be discharged for an illegal consideration that' applied to them alone. Before the passage of the act of 1838, containing provisions similar to those of section 19, chapter 177, of the Code of 1849, it had been held that, in such actions, the well established rule' that, in joint actions on contract a failure as to one was a failure as to all, was applicable; and it cannot be questioned that the case of Moffett v. Bickle came within the mischief intended to be remedied by the provisions of 'the act of 1838, as well of section 19 of chapter 177 of the Code of 1849; for the application of those provisions to such a case involves no departure from the well established rule that, in all actions the allegata and probata must agree. In delivering the opinion of the court in the case of Moffett v. Bickle, Judge Moncure, reférring to the opinion of Judge Joynes in the case of Steptoe v. Read, said: “That view of the. case seems to concede that if it had been proved by competent evidence that Steptoe was not a party to the contract, there might have been a judgment in his favor and against the other defendant; which certainly would have been going further than it is necessary to go in this case to maintain the correctness of the judg-’ ment of the County court. In that case there would have been an apparent difficulty, though it may have been merely technical, on the ground of variance. A judgment would have been rendered against one of the defendants upon a several contract, in an action upon a joint contract. But here there is no room even for such a technical objection. There is no variance in the case. The case proved is precisely the case stated in the declaration. The note was in fact drawn and endorsed as therein charged. ’ ’
    If Judge Joynes does appear to concede the proposition *that there might be a judgment for one defendant and against another on proof of a several contract in an action on a joint contract, it was a mere concession in the argument, and not a judicial settlement of the proposition as a rule of practice. So far then as the two cases mentioned are concerned, the construction of the section of the Code referred to as applicable to this case is not settled, and I know of no other case in which the subject has been discussed or referred to; and the question comes up now to be settled whether, in a joint action on a contract averred to have been made by several, there can be a judgment against one on proof of a contract made by him alone. To hold that there can be such a judgment would not only set aside the decisions made in a number of cases, of which the cases of Rohr v. Davis, 9 Leigh 30, and Baber v. Cook, 11 Leigh 606, are conspicuous, but would involve a departure from rules of pleading and practice which have not only the sanction of the sages of the law, but are of daily application in our courts. One of those rules is that whatever is alleged in pleading must be alleged with certainty, and another is that the proof must correspond with the case made in the pleadings.
    What degree of certainty is required in the pleadings, and of conformity of the proofs to the pleadings, it is not necessary to discuss, it being sufficient to say, that in all cases the certainty must be to a reasonable intendment, and that in no case is a variance in any material particular admissible; and that in pleadings setting forth written contracts or agreements (especially if under seal), the highest degree of certainty is required in their description, and the most accurate correspondence of the documents offered in evidence with those set forth in the pleadings is necessary. Hence, in an action on a sealed obligation, a varianee *in the names of the parties, the sums specified, the date, and other particulars, may be objected. It is to be presumed that no court would hold that, in an action of debt against John Smith, in which it was alleged that he had signed and sealed his individual bond for $1,000, dated on the 1st of January, the plaintiff could introduce a bond or single bill signed with the name of John Jones alone, or by John Smith and John Jones jointly, or one signed by him for $100, or one dated the 1st day of July; and neither in a suit against John Smith and John Jones jointly, averring a joint obligation by them, would it be admissible to introduce in evidence the individual obligation of either.
    The reason of these rules is very obvious. When party is sued he must be informed of the character of the claim against him, I so that he may come prepared to make his defence; and so a plaintiff must be informed of the defence, in order that he may be prepared to meet it. If, when a party is sued on one contract, judgment can be obtained against him on another, the grossest injustice may be perpetrated. Bord Coke has said that the law is the perfection of reason. This, of course, is to be understood as applicable to the common law, and not to the multifarious forms which the statute law has assumed in these days, for certainly the maxim “Ratio est anima legis” is not applicable to that, or if it is, our present statute law must have many souls. In the construction of section 19 of chapter 177, we must take into consideration the mischief which was intended to be remedied; for it is to be presumed that the object of the enactment was to remedy and not create mischief.
    In the application of the old common law rule, that in a joint action on a contract there must be a recovery ^against all, and that a failure as to one was a failure as to all, much wrong was done in many cases, as for instance where one of the parties sued proved to be an infant, a bankrupt, or laboring under some disability to contract, or was entitled to a discharge for reasons personal to himself. This rule came to be modified very considerably by the courts, especially in cases where one of the parties proved to be an infant or a bankrupt, and no violence was done to the rules of pleading and practice mentioned above. These decisions proceeded on sound principles, but there was not uniformity in them, and in our court they were very indefinite; and it is to be presumed-that the object of the legislature was to confirm the modifications in the rule made by the courts and to extend them to cases where the reason was the same, without, however, doing violence to the general principle that the plaintiff must prove a joint contract when he brings a joint suit. If it was the purpose of the legislature to go farther, and permit a plaintiff to obtain judgment on a several contract, when he had brought a joint action averring a joint contract, and the language used is sufficient to accomplish that object, then indeed has it opened wide the door to innumerable mischiefs.
    The court should not presume that it was the intention of the legislature to abolish the rule of pleading requiring certainty in the allegations and a conformity of the evidence to those allegations. The language used in the act of 1838, or in the Code of 1849, does not necessarily import an intention to extend their provisions beyond the principle adopted by the courts in making the exceptions, where the discharge of one defendant is on some ground personal to himself and not applicable to the others. In the first (the act of 1838) the language is, “acquitted or discharged,” and *in the Code it is, “may be barred.” The courts, in making the exceptions, had used the words “discharged” and “barred” as importing the same idea—that is, when one defendant was discharged, the plaintiff was said to be barred as to him. Mr. Robinson, in citing the case of Hartness &c. v. Thompson and others, 5 John. R. 160, on page 401, vol. 1, of his old Practice, says: ‘ ‘It seemed to the court that where a suit is commenced against several joint debtors upon a joint contract, and one of them pleads or gives in evidence a matter which is a bar to the action as against him only, and of which the others could not take advantage as it respected them, there could be no good reason why the plaintiff should not be at liberty to take judgment against them.” In a further notice of the same case, on the same page and volume, Mr. Robinson says: “The general principle that the plaintiff must prove a joint contract when he brings a joint suit, the court remark, is not intended to be shaken by the rule laid down in that case. The operation of that rule, the court sa.y, is to be confined exclusively to the case of a defence insisted on by one of several joint debtors, which is personal to him, and which does not go to the discharge of all. ’ ’ The italics in these citations are my own, and are intended to call attention to the language of the court in laying down the rule as to the exceptions of the general principle.
    Can it be presumed that the legislature, in establishing the rule it adopted, used the same language in a broader sense than was given to it by the courts? It is well known that Mr. Robinson bore a very conspicuous part in the compilation of the Code of 1849, and he was probably the author of the section in that Code referred to. Having cited the cases on the subject in his Practice, it is to be inferred that in using the word *“barred” he used it in no broader sense than was given to it in the cases he cites.
    It is admitted that it is proper to apply the principle to all cases where the reasons are similar, and its application in the case of Moffett v. Bickle was just, and does not violate any established rule of pleading or practice; but it cannot be admitted that it is a legitimate construction of the enactment, to so extend its provisions as to enable a plaintiff to sue on one contract and recover on another. What must be the consequence of such a construction? If applicable to actions on sealed instruments, it must be applicable, of course, to actions on simple contract. A defendant may be sued with another on a joint assumpsit which he knows he has made, but from which he has been discharged by payment or otherwise, and he has also assumed individually another debt to the same plaintiff which he has likewise discharged—he goes to trial prepared to prove his defence in the case on which he is sued, but the plaintiff proves the individual assumpsit against him, as to which he is not prepared. Again, as the law stood when the enactment was made, no party could testify in his own case. A person to whom another has assumed a debt, knowing that it had been paid or discharged, and that the payment or discharge can be proved by certain witnesses, to cut off their testimony, sues therh along with the party who has been his debtor, and is thus enabled to obtain judgment against him on a .satisfied debt. Again, a person having , a claim aginst a resident in a distant county, and wishing to give jurisdiction to the courts of his own county in the case, sues his debtor along with some neighbor or friend of his own, and is thus enabled to draw the jurisdiction to the court at his own home; *for when the plea to the jurisdiction is put in, if the distant party is able to get to the clerk’s office in time, the reply is that one of the defendants sued along with him is a resident within the jurisdiction of the court.
    Is it possible that the legislature ever passed a law from which such consequences might result, or that the court will so construe the enactment in question as to permit such consequences? It will not do to say that it is impossible or improbable that any such cases can occur. I have actually had a case of the latter kind to occur against a client of mine in a chancery suit before the war, in which suit was brought against him and another party in a city sixty or seventy miles distant from his residence, when there was no privity whatever between them. I was put to a demurrer for misjoinder of parties and multifariousness, and when my demurrer was sustained, the plaintiffs were permitted to dismiss the bill as to the resident defendant, and I immediately tendered a plea to the jurisdiction, but it was not received, because not filed at the nile day. Again, a man signs a bond as surety because the names of other parties are on it whom he knows are entirely solvent, and he signs with the understanding that other parties are also to unite in it, and their names are forged. When suit is brought against all the parties, he cannot plead non est factum as to them, because that is a plea which they alone can put in. He does not know whether it is really their bond or not, and cannot know until the question is settled by a jury. He thex'efore either puts in a formal plea of payment or permits the office judgment to stand against him; but the other parties, however, do plead non est factum; and upon the trial the issue is found for them on that plea, and against *him on the plea of payment, if he has put it in. What x-emedy has he if not on motion in arrest of judgment? Does the act of the legislature permit such flagrant wrongs? If there had been a vex'dict against Bush in the first trial on the plea of usury, his case would have borne precisely that aspect. It will not do to say that, by consenting to the withdrawal of a juror and subsequently moving for a continuance, he waived all objections. The decisions go to the effect that the motion in arrest of judgment will lie, even where one defendant has confessed judgment, and there is a subsequent jxtdgment for the other's. And if it lies in any case, it lies in this, for the court can make no exceptions but those authorized by the legitimate import of the language of the Code. In Bush’s case, also, by joining him with parties resident in Roanoke, who were really not bound by the obligation sxted on, the court of that county has taken jttx'isdiction against him when he was resident in another county, to which px'ocess against him was sent to be served; and it is respectfully submitted whether the court ought not to have arrested the judgment because of this abuse of its px-ocess.
    I have thus submitted some views in regard to the proper construction of section 19 of chapter 177 of the Code of 1849, and given some instances of the very great mischiefs which may resxxlt if such a construction is given to that section as the counsel for the defendant in error asks may be given to it. There are many other views which might be taken, and other mischiefs depicted, but, I think, those given are sufficient to warrant the construction for which I contend. It is to be hoped that the court, will definitely decide the three main questions x'aised:
    1st. Whether, in a civil action, there can be a vex'dict *as to a portion of the parties on one of the issues joined, without a verdict as to the other issues and parties.
    2d. Whether, in a joint action against several, where the plaintiff endorses summons so as to require service on a portion of the parties only, there can be a judgment against those on whom the summons is served. And here I will say that the case of Moss v. Moss’s adm’or, 4 Hen. & Mun. 293, referred to by counsel for the defendant in error, has no application to this question. There being no appearance or plea by William Gish, and his name appearing in the declaration as one of the defendants, the court had a right to look at the ox'dex's at rules and the process in the case, to see what steps had been taken as to him. That was done in the case of Shields v. Oney, before cited.
    3d. Whether, under section 19 of chapter* 177 of the Code of 1849, there can be a judgment against one on a sevex-al contract who is sxted along with others on a joint and several contract.
    These questions are of great importance, and should be judicially settled.
    Bdmonson & Blair, for the appellee.
    
      
      Pleading.—The principal case at p. 431 is cited In Kimball & als. v. Borden, 95 Va. 208, as sustaining the rule that all pleadings must be certain and clear. See also, 4 Min. Inst. 690; Shrewsbury v. Miller. 10 W. Va. 121.
    
    
      
      Practice.—For the proposition that there may be a judgment In favor of some of the defendants at one time and against others at another time, see Beazley v. Sims, 81 Va. 616; Muse v. Farmers’ Bank, 27 Gratt. 251, following the construction of the Code of 1819, ch. 177, § 19, In the principal case. See also. Moffett v. Bickle, 21 Gratt. 280; Steptoe v. Read, 19 Gratt. 2. The section referred to in Code of 1849 is re-enacted in Code of 1887, § 3395. See its application in Cahoon v. McCulloch, 92 Va. 177. These statutes alter the common-law rule. The principal case Is cited in West Virginia, (which has jirecisely the same statutory enactment as Virginia) in Choen v. Guthrie, 15 W. Va. 107; Enos v. Stansbury, 18 W. Va. 480; Hoffman v. Bircher, 22 W. Va. 552. See Barton’s Law Pr. (2d Ed.) 428; 4 Min. Inst. (3d Ed.) 689, 968. For the non-application of the above referred to statute, see Gibson v. Beveridge, 90 Va. 696.
    
   Staples J.

delivered the opinion of the court.

This is an action of debt brought in the Circuit court of Roanoke county, upon a writing obligatory. The instrument is joint and several, and purports to have been executed by five persons; px'ocess was issued against all the parties; but by direction of the plaintiff it was not served upon William Gish, whose name is first upon the bond as obligee. The declax'ation was filed, common ox'der entered, and regulax'ly confirmed *at rules. At the next term thereafter, all the defendants pleaded usury, and three of them severally filed pleas of non est factum. Upon these latter pleas verdict and judgment were rendered for the three defendants. The jury not agreeing upon the issue made upon the plea of usury, were discharged, and the cause was continued as to the defendant Bush. At a subsequent term of the court a verdict was rendered for the plaintiff against Bush, upon the plea of usury, for the entire debt claimed in the declaration. A motion was thereupon made by him for a new trial, which was overruled. He then moved in arrest of judgment, which motion was also overruled, and judgment given upon the verdict.

The correctness of that judgment is now to be considered. The errors assigned will be examined in the order in which they are presented in the proceedings. And first, it is insisted that upon a joint and several obligation the plaintiff may proceed jointly against all the parties, or severally against each. If he elects to sue more than one, he must proceed against all, and not any intermediate number. That here the plaintiff having elected to sue more than one, was bound to proceed against all; and yet by his direction one of the defendants was not served with process; and it is claimed that this precludes a judgment against any.

In support of this objection the case of Shields v. Oney, 5 Munf. 550, is much relied on. That was a suit against two partners, and by the direction of the plaintiff process was served upon one only. On the trial the defendant demurred to the evidence; and his demurrer being overruled he moved in arrest of judgment, upon the g'round of the non-joinder; which motion was also overruled. This court held that the proceedings were all erroneous; that the plaintiff himself *having directed the writ not to be served upon one of the defendants, a plea in abatement by the dther was unnecessary.

This is a very strong authority, and if the facts in the two cases were the same, it would, of course, be conclusive of this. In the present case, it appears, however, that the defendant, Bush, appeared and pleaded in bar at the August term—the jury not agreeing, the case was continued as to him. At the next succeeding term it was continued on his motion, and at the next term it was again continued. During all this time the defendant was as well aware of the alleged irregularity as he is now; for it plainly appeared on the face of the proceedings. He did not move to remand the case to the rules; he did not complain of the defect in any form. After the rendition of the verdict against him, he moved in arrest of judgment, assigning various grounds of error; but this objection was not made or even distantly intimated. It was first suggested in the petition for an appeal, when the defect was without remedy by the plaintiff, or by the court which tried the case.

According to a well settled rule of pleading, an objection for the non-joinder of a coobligor must be taken by plea in abatement. If not so taken, the objection is considered as waived. Such a plea is unnecessary where the plaintiff directs the process not to be served upon one of the parties; but the defendant may, if he pleases, waive all objection to this irregularity. He may for good reasons prefer to waive it; and I think he should be held to have done so when he wholly fails to raise the point in the court in which the error can he explained or corrected. Had this objection been made in the Circuit court, the plaintiff might readily have answered it. The defendant has *himself furnished the answer. In his motion in arrest of judgment, entered upon the record, he states that ‘ ‘neither he nor William Gish, at the time of the institution of the suit, were residents of the county of Roanoke, or since have been residents of said county; but at that time William Gish had fled from the country, having previously to his flight resided in the county of Bedford.”

This fact was no doubt well known to the court, to the counsel, and to all the parties. It fully explains why the direction was given by the plaintiff not to serve the process upon William Gish, and why the objection was not taken at the time by the defendant. If no such direction had been given, the process would have been returned, “No inhabitant” as to Gish, and the suit would have abated as to him. And this perhaps would have been the more regular course: but we are now considering the question in an appellate court. We are now asked to reverse the judgment and all the proceedings, because, by the direction of the plaintiff, process was not served upon one of the defendants, when it appears by the defendant’s own showing that this direction was wholly immaterial, and no such service could by possibility have been had. Three of the defendants were discharged upon the pleas of non est factum. This occurred fifteen years ago. Where these parties now are, whether living or dead, it is impossible to tell. If we sustain this objection, we cannot enter judgment for the defendant Bush, as is contended. All that we-could do under the circumstances would be to set aside all the proceedings as to all the defendants, and remand the cause, in order to afford the plaintiff an opportunity of issuing new process against William Gish, or of showing why the original process was not served upon him. That he *would show this very clearly, that he would make it appear that Gish had fled the country, and was not an inhabitant of the state when the suit was instituted, it is impossible for a moment to-doubt. And after all this further expense and litigation the case would be in the precise condition it is now with respect to the pleadings, and was in fifteen years ago.

These considerations serve abundantly to-show the wisdom of the rule requiring objections of this character to be taken certainly at some stage of the proceedings in the court below. And if no such rule existed, we are fortunately furnished by the defendant himself with the facts as they doubtless appeared in the court below, and which remove all objections to the alleged irregularity.

The next assignment of error to be considered presents the main question in the case. It is, whether in a joint action ex contractu against several defendants, some of whom are discharged by the verdict of the jury, upon grounds which show they were not parties to the contract, the plaintiff can have judgment against those who are parties. It is conceded that such a recovery is not authorized by the rules of the common law. The almost universally recognized doctrine is, that in an action against several defendants on a joint contract plaintiff cannot recover judgment against part of them; he must have a joint judgment against all, or he cannot have it ag-ainst any. If the contract be several as well as joint, the action must be against all the obligees jointly or against one of them singly, and not against any intermediate number. If the plaintiff elects to proceed against all, the same consequences ensue as in an action on a joint contract; he must have judgment against all or none. Taylor v. Beck, 3 *Rand. 316; Baber v. Cook, 11 Leigh 606; 3 Rob. Prac. 100.

If these rules of the common law are in force in Virginia, it is conceded that the plaintiffs cannot have judgment in this case against the defendant. It is claimed however, that they have been changed by statute. The provision relied upon is the following: “In an action founded on contract, against two or more defendants, although the plaintiff may be barred as to one or more of them, yet he may have judgment against any other or others of the defendants against whom he would have been entitled to recover if he had sued them only.” Code of 1860, chap. 177, sec. 19.

This section was first enacted at the revisal of 1849-’50. It is claimed by the counsel for the plaintiff, that under the operación of this provison, the plaintiff in a joint action on contract against several defendants, may have judgment against part of them although the others are acquitted upon grounds which go to the denial of the joint contract stated in the declaration.

On the other hand, it is insisted for the defendant that the statute does not apply to a case in which the right of action never existed as to a part of the defendants; that the legislature could never have intended to authorize the plaintiff to declare upon one contract and recover upon another; that the sole design of the enactment was to reach those cases in which the contract is proved as laid, but by reason of some personal disability, such as infancy, or some subsequent discharge, such as bankruptcy, personal to him who pleads it, the plaintiff’s action is barred as to part of the defendants. In these and like cases it is said that the statute applies, and although the action *is barred as to part, judgment may be rendered against, the others.

The provision now under consideration has been before this court in two cases; and although the precise question arising | here was not decided in either of them, the language of the judges indicates a manifest disposition to give the statute an enlarged and liberal interpretation. The first case is that of Steptoe v. Read, 19 Gratt. 1. That was an action of assumpsit against two as partners, alleging a joint contract. One of the defendants, Quarles, was offered as a witness to prove that he alone was liable, and that Steptoe, the other defendant, was no party to the contract. It was very clear that at common law Quarles was incompetent, because, in defeating a recovery as to Steptoe, he defeated it as to himself, upon the plain principle that in a joint action against several there can be but one final judgment, which must be for or against all the defendants. It was insisted, however, that the statute removed this difficulty in authorizing a judgment against some of the defendants, although the plaintiffs may be barred as to others. Judge Joynes conceded that under the statute Quarles was competent to prove that Steptoe was no party to the contract, “which was a defense personal to him,” Steptoe. The learned counsel says this was a mere concession made by Judge Joynes for the sake of the argument. This may be so. But if, as contended by the learned counsel, the rule of the common law which requires the joint contract to be proved as laid is not changed by the statute, it is very clear that Quarles was not a competent witness, even under the statute, to prove that Steptoe was no party to the contract, and the learned judge would have so said,. without taking a circuitous route to *prove that Quarles was incompetent upon other grounds.

However this may be, the opinion in that case shows the distinction between a defense which goes to the foundation of the entire contract, and a defense which is merely personal to him who pleads it, and does not touch the liability of the other defendants. The former necessarily defeats the action as to all, and is therefore not within the influence of the statute. Such is the defense of illegality or failure of consideration, or a release to one of several joint contractors, and the like.

On the other hand, the latter bars the action only as to him who pleads it; as for example the plea of infancy, bankruptcy, non est factum, and the like. These pleas operate to the discharge of the party pleading them; but do not necessarily affect the liability of .the other defendants. Whenever the defence of one of several defendants is of such a character that the plaintiff might recover against the other, if the suit was against that other only, there the statute applies. In other words, if notwithstanding the discharge or acquittal of one of the defendants, the plaintiff might at common law commence a new action and recover against him who is liable, he is entitled under the statute to a judgment against that defendant in the pending action. As, in the present case, three of the defendants were discharged upon grounds personal to them; and as the plaintiff might thereupon discontinue and commence a new action against the defendant Bush, he is entitled under the statute to proceed against the latter in the present action without a discontinuance and a new suit. This, I think, is substantially the construction given to the statute in Steptoe *v. Read. This construction is not only just and sound, but it would seem to furnish a very reasonable test for determining what cases are within the influence of the statute.

In Moffett v. Bickle, 21 Gratt. 280, the action was upon a negotiable note against the maker and four endorsers. The jury found that the note and all the endorsements but the last were usurious, but that the last was free from usury. The question was whether judgment could be given against this last endorser; and this depended solely upon the statute; for it was clear that no such judgment could be rendered at common law. The president of this court speaking for all the judges said: “If the statute does not apply to such a case, it is difficult to conceive of one to which it will apply, and the statute will be of no value. There is no need to apply it to the case of a joint action or contract against several defendants, one of whom is entitled to his personal discharge on the ground of infancy, bankruptcy, &c. Cases of this sort we have seen, constitute exceptions to the general rule requiring judgment to be rendered against all or none in joint actions ex contractu. ’ ’ It will thus be seen that this case does not decide the precise question now before us, because in point of fact, all the defendants did make the contract as averred, while it was valid as to part of them only. The case is only mentioned as showing the leaning of this court to give to the statute a liberal interpretation.

A careful examination of the statute will show there is nothing in its language warranting the construction given it by the learned counsel for the defendant. It has been already quoted, but it may with advantage be repeated. “In an action founded on contract against two or more defendants, although the plaintiff *may be barred as to one or more of them, yet he may have judgment against any other or others of the defendants- against whom he would have been entitled to recover if he had sued them only.”

Upon what principle are these words to be confined to cases in which the plea of the defendant admits the contract alleged, but sets up some matter in discharge of the obligation. The word “barred” gives countenance to no such idea. Non assumpsit is a plea “in bar” of the action; so is non est factum. If the defendant makes good his defence under either of these pleas, plaintiff is “barred of his action” as to him. If the defence does not affect the obligation of the other defendants—if the plaintiff would be entitled to recover against such other defendants had he sued them only—he is by the express terms of the statute entitled to judgment against them in the pending action.

The counsel for the defendant, in a very elaborate note of argument, presents very strongly some of the mischiefs which he supposes will result from this construction of the statute. For example, he suggests that the same rule must apply to actions on simple contract. A defendant may be sued with another on a joint assumpsit, which he knows he has made, but from which he has been discharged by payment or otherwise, and he has also assumed individually another debt to the same plaintiff, which he has likewise discharged; he goes to trial prepared to prove his defence on the joint contract, but the plaintiff proves his individual assumpsit as to which he is not prepared.

This argument, it must be admitted, assumes the existence of a very unusual transaction. It assumes the defendant has made two simple contracts with the plaintiff, one joint and the other several; that both have been performed; that the plaintiff brings his suit *on the joint contract; and with a fraudulent intent he and his counsel on the trial abandon the joint contract, and elect to proceed for that which is several.

Now, conceding that this may sometimes happen, the same difficulty may occur in an action of trespass, trover, assault and battery, false imprisonment against several: the defendant may come prepared to defend himself on the joint charge, and the plaintiff may elect to proceed for a several trespass. And yet it is well settled that in actions of tort against several, one of the defendants may be convicted by the jury, while others are acquitted.

But it is difficult to see how a case, such as that suggested, can ever occur, if the parties observe the ordinary rules of pleading. The declaration must always so state the cause of action, as to give the defendant notice of the precise nature of the complaint. In assumpsit the plaintiff is required to file an account setting forth the several items, unless they are plainly described in the declaration. The defendant thus plainly sees what he is charged with. He knows what he is required to defend, whether he is sued singly or jointly with others. The rulé in question authorizes the plaintiff to declare against several as upon a joint contract, and to recover against a part of the defendants. But this is the only variance. The proofs must correspond with the allegations in every other respect, and the plaintiff must prove his case as laid. Unless therefore the defendant has made two contracts with the same plaintiff, one joint and the other several, both identically the same in all the essential elements of consideration, subject-matter and promise of performance, it is impossible that the plaintiff can surprise the defendant by abandoning the contract laid in the declaration, and proving another on the trial.

*The learned counsel further insists, that under this construction of the statute a person may be joined as a defendant, merely to exclude him as a witness, or for the purpose of giving jurisdiction to the court of a particular county against a non-resident defendant.

It is sufficient to say, that conduct of this kind would be treated as a fraud upon the non-resident, and an abuse of the process of the court. The exposure would be easy, and the punishment immediate, in the dismissal of the suit as to such non-resident, or in the prompt discharge of the defendant, whose testimony is thus sought to be excluded. Haws are passed, and rules of practice adopted by the courts, suited to the general convenience of parties and the due administration of justice among men. Any rule that may be adopted will sometimes lead to abuse and injustice. The remedy is not in the repeal of the rule or statute, but in the corrective power of the courts.

Again, the counsel argues that the defendant may have set-offs against the debt, but he is not allowed to file them, because they are due him individually, whereas the debt claimed is sued as a joint obligation; or the defendant may have signed the bond sued on with express condition that the other parties were also to sign,—how can he avail himself of this plea until it is ascertained whether the other parties are bound?

The difficulty last mentioned would equally occur if the defendants relying upon the pleas of non est factum, should die before suit brought, or even afterwards and before the pleas were tried. The action being against the survivor only, how could he plead that his contract was conditional. In this very case, the bond being several as well as joint, the suit might have been first against the defendant Bush, omitting the others; and thus, according to the argument of the learned counsel, *his client would have been precluded from pleading that his contract was conditional. The argument unfortunately proves too much.

But the answer to all this reasoning is, that the defendant knows at least the tenor of his own contract. When he sees his co-defendants thus denyng the execution of the bond, if he meant to rely upon the fact that he signed the instrument conditionally upon their executing it also, he ought to put that matter in issue by proper averments, and he clearly has the right to do so. His success will depend in a great measure upon their success in making good their defence. If they fail he will also fail, and the burden will fall upon all.

In regard to the question of set-offs; the difficulty suggested by counsel equally arises where the action is several and one of the defendants relies upon the plea of bankruptcy, infancy, or any other matter which goes to the personal discharge of such defendant.

In all this class of cases it is conceded that although one of the defendants may be acquitted, the plaintiff may nevertheless have judgment against him who is liable; and yet the latter may be deprived of his set-offs by a joinder with him who is not liable. How does the learned counsel propose to get rid of this difficulty; one, no doubt, of frequent occurrence in the administration of justice. All the defendant can do under such circumstances, is to bring his cross-action, obtain his judgment, and at the proper time apply to the proper court to have the judgments set off one against the other. The practice of setting off one judgment against another is derived from the general authority of the common law courts over sureties, and is said to be the exercise of an equitable jurisdiction *in those courts; a jurisdiction liberally exerted, and not confined to debts due to and from the same number of persons. The law of set-offs is almost exclusively a creature of statutory regulation. At common law it was never permitted unless the debts were mutual and grew out of one and the same transaction. If the effect of the statute is to restore that rule in a few exceptional cases—no doubt of rare occurrence'—and to put a defendant to his separate action, it is difficult to see that any great hardship or injustice is thereby inflicted. Clearly there is no just cause of complaint where the defendant by his form of contract, deliberately executed, places it in the power of the creditor to sue one or all the obligors to the bond.

In regard to all the views presented by the counsel for the defendant, it may with perfect truth be said, that none of them apply to his client. The defendant Bush was not precluded from relying upon any set-off he might claim, or of offering his plea of a conditional obligation. He had the fullest opportunity after the case was tried on the pleas of non est factum, of making any defence he could have made if the action had been against him only. It was never pretended or even suggested that he had any defence other than that of usury.

It is very true that Bush resided in Franklin, and that jurisdiction was given to the Roanoke court as to him by joining the three defendants who are acquitted. But it has never been even intimated that the plaintiff was guilty of bad faith in so doing. He no doubt honestly believed that all the parties had executed the bond. The statute declares that the suit may be brought in any county wherein either of the defendants resides, and it authorizes process to be sent to the distant counties for the co-defendants.

*It could scarcely have been the design of the legislature that a plaintiff who pursues the statute does so at his peril; and that whenever a resident co-defendant is acquitted by the verdict, the action must abate as to him who resides in another county. If the plaintiff honestly believes that both defendants are liable, and has reasonable grounds for so believing, he is entitled to proceed as though all were in fact liable. The jurisdiction of the court having once attached, will not be ousted because it turns out that the resident ,defendants are not liable. In such case, a prima facie defendant is a proper defendant for all the purposes of jurisdiction. As already said, if the process of the court is abused, and a mere pretext made to give a color of jurisdiction, the corrective power of the court will be used in punishing the offence by a prompt dismissal of the suit at the cost of the offending party.

I have thus attempted to notice some of the more prominent objections of the counsel for the defendant to the statute, according to our interpretation. These objections might have been more properly addressed to the legislature, in as much as the courts must execute the law as they find it, and not as they would have it. It may not be amiss, however, to consider briefly some of the mischiefs which will result from a contrary interpretation. These may throw some light upon the design of the legislature in passing the statute.

In the first place, the rule requiring a plaintiff in an action ex contractu against several defendants to prove the contract as to all, is a mere rule of the common law. Tike many other of the common law rules, it is purely technical in its nature, in many instances producing great delay and much inconvenience without any corresponding advantages. The defendants *very rarely derive any real substantial benefit from it. Whether one or many be sued, the parties soon understand by the pleadings the real matter of controversy, and come prepared to meet it.

On the other hand, the plaintiff often encounters difficulties, not only as to the form of action, but also in determining the proper parties defendant. A person in possession of a written obligation as obligee or assignee, signed, or purporting to have been signed by several, and honestly believing they are all liable, brings his suit against all. He is met on the trial with a plea of non est factum by one or more of the defendants. A verdict is rendered in his favor, bills of exception are taken, writ of error allowed, a reversal by the appellate court; other trials are had, and finally a verdict for the defendants upon these pleas. And then, after years of fruitless litigation and expense, the plaintiff is compelled to start out upon a new expedition against the other defendants who are confessedly liable, and who never had a shadow of defence. And all this because the plaintiff had sued five defendants, when he ought to have sued four or a less number. But why go in pursuit of imaginary cases, when the one before us furnishes a most apt illustration. The plaintiff was in possession of a bond probably brought to him by the principle obligor. He doubtless believed that all the signatures were genuine. The presumption is, he would not have taken it if he had not so believed. Upon the trial he is met with pleas of non est factum by three of the defendants. What was he to do under such circumstances—dismiss his suit and commence a new one against the others? That will scarce be contended. He was not bound to give up the security furnished by these three apparent obligors. It was his right and his duty to try the ^question. Until the case was actually decided by a jury, it was impossible to say whether the defence would be successful or not. The defendant Bush was himself materially interested in the issue; for if the plaintiff succeeded, the burden which otherwise must be borne by him singly would be shared by others equally with him. It is not pretended that the defendant Bush is discharged from his obligation by the acquittal of the-other defendants. All that is claimed is-that the plaintiff ought to discontinue and commence a new suit against him. But why bring a new suit? All the facts necessary to enable the defendant to make his defence are already in the record. Why turn the plaintiff around to another action, when perfect justice can be done and was done to the parties in this? I am justified, in saying that justice was done, because it does not appear—no complaint is made—that any damage or loss was sustained by this defendant in the present action which might have been avoided in a separate suit against him. The objections made by his counsel are purely technical, and do not affect the real merits of the controversy. And now, after the lapse of fifteen years, we are called upon to reverse the present judgment, not because injustice has been done this defendant, but because the plaintiff brought a joint action against all, instead of a separate action against each. This simple statement is of itself sufficient to vindicate the wisdom of the statute. If the legislature had never passed such a provision, the common voice of the profession would say that such an enactment is demanded by the highest considerations of justice and sound policy.

The only remaining assignment of error to be considered is, that the jury being sworn to try all the issues joined, it was improper to permit them to render *a verdict in favor of a part of the defendants on some of those issues. The learned counsel for the defendant, in his note of argument, quotes a remark made by Judge Green in Gardner’s adm’r v. Vidal, 6 Rand. 106, that there is no example of a verdict being set aside as to one issue and suffered to stand as to others, and trying a cause by piece-meal; and the learned counsel insists that the converse of the proposition is equally true, that “there is no example of a jury being allowed to render a verdict on one issue when they cannot agree as to others, and thus trying the cause by piecemeal.” As has been already seen, at common law if the plaintiff elected to treat the contract as joint, and sued all the contracting parties, his judgment must have been jointly against all or none. There could, of course, be but one final judgment. As a necessary consequence the jury could never find part of the issues for a portion of the defendants.

But if our construction of the statute be correct, if notwithstanding the acquittal of a part of the defendants upon grounds personal to them, the plaintiff may still have judgment against the others, no good reason suggests itself why such judgment may not be had at a subsequent term of the court. If the jury are agreed as to some of the defendants upon issues personal to them, why should they be prohibited from rendering a verdict as to such defendants merely because they are not agreed as to others who make a wholly different defence? Why should the plaintiff be precluded from assenting to such a verdict if he is satisfied it is justified by the evidence? Is he to go on from term to term summoning witnesses, empanelling juries, and incurring increased expense, in support of an issue he knows must always be decided against *him? Is one defendant to incur the trouble and expense of successive trials because the jury are not agreed upon other issues as to other defendants, with whom he is in no manner connected? If such a rule be adopted, the result will be that the plaintiff will, always bring several actions against the obligors, of which they must bear the costs, when a single action would answer but for the- rule.

The plaintiff is authorized by statute to take judgment from time to time against the defendants as they are served with process. Tong before this enactment it was the constant practice, where some of the defendants had not been arrested, for the plaintiff to take judgment against those who were, although those not arrested-had not been proceeded against as far as the law authorized. 1 Rob. Prac. 258-’9; Moss v. Moss’s adm’r, 4 Hen. & Mun. 293. This was in effect allowing several judgments against several defendants at different times, in a joint action on contract. And I can see no good reason why, under the influence of the statute, there may not be separate verdicts as to different defendants, where the issues are entirely distinct, and the plaintiff is barred as to part of them upon grounds which do not affect the liability of the others.

I have had no access to any reported cases in states where statutes similar to ours are in force; but in Hilliard on Hew Trials, 145, note a, reference is made to the case of Sprague v. Childs, 16 Ohio St. R. 107. It is said to have been decided in this case, where there are several defendants, each of whom pleads a separate defence, upon which issues are joined, and a second trial is taken (under the Ohio Code) by one of the defendants, the only issues then to be tried are those between plaintiff and defendant. If the defendant’s *plea goes to the plaintiff’s right to recover against any of the defendants, it will, so far as it is established, enure to the benefit of the other defendants as fully as it would have done upon the first trial. But if the defence of the defendant goes no farther than to exonerate himself from liability, the liabilities of the others will remain unaffected by the result of the second trial. This is substantially the proposition involved in the case before us—several verdicts at different terms as to different defendants, whose defences are not connected.

It has been urged that the defendant, Bush, was vitally interested in the trial of the pleas of non est factum, and a verdict thereon ought not to have been received without his consent.

The defendant had the fullest opportunity of taking part in the trial of the pleas of non est factum. How long was the case to be continued upon those issues? How many trials to be had until the defendant himself was convinced of the hopelessness of the struggle?

If the defendant was interested, so was the plaintiff, in showing that all the signatures to the bond were genuine. The latter seems to have been satisfied that the defence was well founded. If the jury had, at the same term of the court, rendered a verdict upon the plea of usury as to the defendant, Bush, he would have had no just cause of complaint; and yet his condition, in that event, would have been no better than it is now. Suppose after the verdict was rendered in favor of the three defendants the plaintiff had discontinued and commenced a new action against the present defendant, in what respect would his position have been improved? • So soon as those defendants were out of the way, the defendant, Bush, could make any defence he might have made had they been omitted in the first ^instance. So far from being prejudiced, he was actually benefited by the rendition of the separate verdict. He made no objection to it. It seems to have been acquiesced in on all sides, no doubt from a consciousness that the result was inevitable, and could not be varied upon any future trial. The jury being unable to agree upon the question of usury were discharged by consent of ajl parties. This was at the April term 1859. More than a year thereafter the verdict was rendered against the defendant, Bush. His motion, in arrest of judgment, did not embrace this objection. It was made for the first time in the petition for an appeal. If there was any weight in the objection at any time, it was one the defendant might prefer to waive, and one he had the right to waive. Having seen without objection the return of the separate verdict, having agreed to the discharge of the jury upon the other issue, having subsequently moved for a continuance of the case, "and having taken his chances before another jury, where his defence was fully investigated, the defendant cannot be permitted for the first time in this court to make the point in this court, but must be held to have waived the irregularity, if indeed it could be regarded as an irregularity.

Upon the whole, I am of the opinion the judgment of the Circuit court is right, and should be affirmed.

Judgment affirmed.  