
    Thomas L. Hallett, Wm. Raser and al. against James P. Allaire.
    
      December, 1824.
    1, Plaintiffs in Error, after join-der, cannot dismiss their writ.
    2, In action vs. several on a joint contract, plaintiff may confess the matter plead separately by one in bar as to him, enter nol. pros, as to him, and proceed to judgment vs. .the others.
   JUDGE Minor

delivered the opinion of the Court.

This case was submitted without argument. First, on the plaintiff’s motion to dismiss their writ of Error, because the parties are not the same as to the judgment below; and if the motion should be overruled, on the Errors assigned.

The case has been regularly called for trial. If the plaintiffs could now dismiss their own writ, they might, by successive writs of Error and supersedeas, delay execution on the judgment until the writ of Error should be barred by the Statute of limitations. The motion to dismiss must be overruled.

This was an action of assumpsit by Allaire against the plaintiffs in Error and John B. Hogan. The declaration charges a joint contract of the four plaintiffs in Error, and Hogan with Allaire. The plaintiffs in Error jointly plead non assumpsit. Hogan filed his separate pleas, denying that he executed the note on which the action was founded. After the case was put to the Jury, the plaintiff, setting out that lie cannot deny the matters plead by Hogan, entered a nolle prosequi as to him; a verdict and judgment were rendered against the other four defendants, the present plaintiffs in Error. The only assignment of Errors now necessary to be noticed is that the cause was discontinued.

Rust, for plaintiffs.

Acre for defendant in Error.

In an action ex contractu against several, a joint contract must be proved ; and it has been held that if it appear either by the verdict, or the plaintiff’s admissions on the Record, that the contract declared on is not the contract of any one of the defendants, the plaintiff cannot have judgment, inasmuch as a different contract from that which was declared on is shewn by the Record. These decisions appear to have been made under laws as to joint contracts materially different from those which prevail here. In actions of trespass it seems always to have been held that the plaintiff may enter a nol. pros, as to one, or that there may be a verdict against one of several defendants; and yet the plaintiff may have judgment against the rest, trespass being in its nature several, though committed jointly.

By our Statute every joint bond, promissory note, &e. shall be deemed to have the same effect as if joint and several and process may be sued out, and judgment had against all or any one or more of the obligors, promissors, &c. The Record here shews that the note sued on was not the note of the five defendants originally charged by the declaration ; but it shews as clearly that it was the note of four of them. Its legal effect as to these four must, it seems, be precisely the same whether they be charged in this or in a subsequent action. Why should the plaintiff be turned round to commence anew a joint action against these four, and recover the same judgment which has been rendered in this ? Our ►Statute, as referred to, seems to me on the question now presented to place joint defendants to actions on contract on the same footing with joint defendants to actions of trespass.

It is the unanimous opinion of the Court that the entry of nol pros, as to Hogan did not operate as a discontinuance of the action as to the other four defendants ; and that the judgment must be affirmed. 1 Saund. R. 207, n. 2. 1 Tidd’s Pr. 595. 1 Wilson, 90. 5 John. R. 159. 2 Sellon Pr. 337. Laws Ala. 448.  