
    Rose against Oliver and Stevens, who are impleaded with Russell.
    against three twenyereta-ken, and the other return-e[j not f0Und. fhe plaintiff declared against thetwo defendants in court, sitnul cum, tíre other; the two defendants pleaded the general issue, not fhwjuryfound a general guilty.1 The defendants rest of’judg^" ment> °n,tlle the plainiffs cee^untifali the-defendants were brought into ?ourt- But that torts be< ggferaMhe plaintiff Section,1 pro-csecl aSainst one or more of the defend. ^e^eclara-^ bon, though informal, was fipred by t}ie yerdict.
    
      A CAPIAS was issued against the three defendants in this cause, in an action of trespass; on which Oliver ai\A Stevens were taken, and the other defendant, Russell, returned not found. [*]The plaintiff, in his declaration, stated the return, and declared that Oliver and Stevens, together with Russell, committed the trespass, &c. The tW’> defendants, Operand Stevens, pleaded not guilty, , , „ . , ami use jury found a verdict of guilty on that issue.
    A motion was now made in arrest of judgment, on the ' J B gronndthat the plaintiff could not proceed in the cause, Ei.i' anyjudgment be rendered, until all the defendants were brought into court.
    
      H. Blseclccr and Sudam, in support of the motion.
    It is a rule of practice, long established, that where a plain-tiffbrings his action against several defendants, he cannot proceed against them, until all are brought intocourt. This rule applies as well to actions for torts as on contracts. It is reasonable that one defendant should have the aid of his co-defendants, and that they should contri-bate their share of the damages assessed. The defendant Russell, having been made a party out of court, the plaintiff cannot proceed until he regularly appears, oris brought into court. The plaintiff having declared against all the defendants, for a joint trespass, and the issue be- . '. . , . . mg upon a joint trespass, the jury cannot sever the damages. But it may he said, that the difficulty can be removed by entering a nolle prosequi, as to all the defendants, not taken, or brought into court. But if the defendant has never been in court, there is np suit against him to be relinquished. The plaintiff cannot say that he will no longer prosecute his suit against A. and that he a 1 . shall have his costs for defending it, when A. never has appeared or defended any suit. In all the cases in which a nolle prosequi has been allowed lo be entered, the defendants were before the court. Again, a declaration against one, simul cum, in trespass is had, and the action will abate; and it need not be pleaded in abatement, for from the plaintiff's own showing, he has no right, to proceed,
    
    
      Gold, contra.
    By examining the old cases from which the rule seems to be derived, that where the plaintiff sues one defendant, simul cum, &c. in the trespass, the suit abates, it will be found appiicableonly before the trial of a pause, and not after verdict. In the case of Htnhj v. Broad, cited from 1 Leonard, 41. it was expressly decided, that the defendant cannot avail himself of this objection after verdict. There is a distinction between ioris and contracts, in this respect. In Viner, the doctrine is laid down, that “ where the action is founded on the tort of the defendants, as in conspiracy against two, and one appears and the other not, he shall answer alone, and shall not stay the coming of his companion; for the tori of one is not ihetort of the other.
      
       The caso in S id erf ai,
      
       cited in various books, in support of the rule contended for on the other side, will be found to have arisen on a contract. All the authorities, if carefully examined, will show, that where there are several defendants, it is not necessary that all of them should be brought into court before the plaintiff can proceed against either; and the idea of contribution suggested, as a reason for a contrary doctrine, is wholly discountenanced by the law. If the defendants sever in pleading, the jury may find separate damages. It is a general rule, that in torts the plaintiff may enter a nolle prosequi, at any time before final judgment. Then what is to prevent the plaintiff from entering a nolle prosequi as to Russell, after verdict and before final judgment ? Again, the defendant who has not been brought into court, can never be affepted by fhp proceedings against the other defendants, who were arrested.
    
      
      11 Co. 5, Sir Jno. Heydon's case, Bailer's JV. P. 94.
    
    
      
       1 Sounder» -207, Sergeant Williams' note, (2.)
    
    
      
      
        Hob, 199. 1 Leonard., 41, '1 Saunders, 291. (d)note.
      
    
    
      
      
         Hiner; 75, pec. 17 Br. ¿lb. 217. Responder, 63.
    
    
      
       1 Siderjin, J73,
    
    
      
      
         Bullerd$.T>. 94.
    
    
      
       Wilson,99. 306. ZSellori’s PracticeAQO, 461. Salk. 455, 45g, ‘
    
   Spencer, J.

delivered the opinion of the court..

A metió» has been made in arrest of judgment, because it appears, by the declaration, that Russell has been returned not found on the capias, and is complained of, together with the two other defeddants, as having committed the trespass; the plea is put in by the defendants, returned taken, and the verdict finds them guilty of the trespass alleged; but it is contended that the plaintiff cannot have judgment against them, as it appears by his own showing, that Russell, whom he has made a defendant, has not been brought into court, nor answered. I have said that the verdict was only against the two; thcposica has not been produced, but a general verdict for the plaintiff, on the issue joined by the two defendants, would authorize an entry that those two only were guilty,

• The method of declaring in this case was, probably, adopted under the notion that the statute, authorizing proceedings against such joint debtors as were returned taken, extended to this case; an idea certainly very inaccurate; but the effect of this mode of declaring we conceive to be the same as complaining that A- and R,. did a trespass simul cum quodam, C. D. because, in neither case is the person not taken a party to the suit. If, then, the two modes of declaring are substantially alike, Henly v Broad (1 Lev. 41.) is decisive, that after a verdict the defect is cured. In that case Henly brought trespass against Broad, in B. R. and declared that he, simul cum qiiodam, J. S. clausum suum fregit. The defendant pleaded to issue, and it was found for the plaintiff. . It was objected, in arrest of judgment, that the count was not good, because it appeared, from the plaintiff’s own showing, that the action ought' to have been brought against another not made a party-defendant, but judgment was given for the plaintiff, and upon a writ of error to the Exchequer chamber, it was affirmed, on t^ie PrinciP,e ^iat ^ was cure(i a^ter verdict, by the statute of jeofails. The ground of this decision must have been, that a trespass is in its nature the separate act of each individual, and that, therefore, the plaintiff has his election to sue all, or any number of the parties. Sergeant Williams in his notes, after noticing the case of Henly v. Broad, and several other cases, which recognise the principle, that if the plaintiff show that the tori was.done jointly by the defendant and A. B. the suit shall abate, says, that there is no. good ground for the distinction, and that it is contrary to the cases in 1 Salk. 32. and 6 Term, 766. and that it was always held, that if the declaration only stated that the defendant simul cum, quibusdam ignotis did the wrong, the action shall not abate. There is no reason why, contrary to the established principle, that trespasses are joint or several at the election of the injured party, he should be obliged to make all the trespassers parties, even if he know them. It can produce no injury to the defendant,, because, on the trial, there would be no evidence of the separate and distinct acts of the trespassers. As to the idea that a contribution could be enforced, and that, therefore, all known to the plaintiff should be made parties, it is enough to say, that this is not a case of contribution; and if all the damages were levied on one of the two defendants found guilty, he would be remediless. The defendants must take nothing by their motion.

Rule refused, 
      
       1 Saund. 291. (d) note.
      
     
      
      
         In (he case of Rogers against Lake, who is impleaded with Lake, argued in this term, on a motion in arrest of judgment, by Crary, for the plaintiff, and Ingalls, for the defendant, (he same question arose,, and the motion, for the same reasons, was refused.
     