
    Ballou, assignee of the Sheriff of Chenango, against I. and A. Hulbert.
    Where one of isukíonacapian ad responjudgment *entevéd and an execution issucd against ecution will™" not be set- aside for irregularity, if it aply^the^defend" ant originally keiMn^execu" tion-
    SIMONOS, in behalf of the defendants, moved to set as^e caP'las adsatisfaciendum in this cause, on the ground of irregularity. From the affidavits produced, it appeared, that, A. Hulbert, one of the defendants only, had been taken on the capias ad- respondendum, issued against both at -1 . . . _ u the suit of the plaintiff. Judgment having been obtained ™ the suit, the plaintiff took out execution against both defendants, who were taken in execution" and now remain . ln prison.
    
      Gould, contra,
    produced the ca. sa. on which the sheriff had indorsed that A. flulbert, one of the defendants only, ^lac^ ^een taken. He contended, that by the words of the statute, an execution might be issued against both the defendants, though the one only who had been arrested on the mesne process, could be taken in execution, and that a plaintiff might indorse a direction on the ca. sa. to that effect. Though the general practice may be to issue a special execution in such cases, yet there was no necessity of inserting such special clause, as the directions of the act would be complied with, if such of the joint defendants as were taken and 'brought into court, on the mesne process, were alone taken in execution. The words, “ shall not issue or execute,” used in the act, when taken in connexion with what followed, must be understood to mean no more than that the execution should not be executed against such defendants as were not brought into court, but the execution might be general and against all, according to the judgment.
    
      
       Revised Laws, Vol. 1. Sess. 24. Ch. 99. Sect 13. The creditor or creditors of joint debtors, may issue process against them in the manner now in use, and in case any of such joint debtors be taken and brought into court, he or they so taken and brought into court, shall answer to the plaintiff, and in case judgment shall pass for the plaintiff, he shall have his judgment and execution against such of them as were brought into court, and against the other joint debtors named in the process, in the same manner as if they had all been taken and brought into court by virtue of such process ; but it shall not be lawful to issue or execute any such execution against the body, or against any lands or goods the sole property of ahy person not brought into cotn't.
      
    
   The Court refused to set aside the execution, but as it appeared from the affidavits, that J. Hulbert was illegally detained in custody, they ordered him to be discharged.

Rule refused, with costs.  