
    Jones et al. v. M'Gahey.
    In actions in form ex contractu a verdict and judgment against one or more joint defendants and in favor of another, is irregular.
    DANIEL M‘GAIiEY declared in the circuit court for the county of Wilkinson, against John Jones, Harry Andrews, David Coon, Lewis Cason, and Daniel Slack, in assumpsit for one hundred dollars, for a barbecue or dinner furnished by him for a company, at their special instance and request.
    The defendants pleaded jointly non assumpsit, upon which there was issue to the county. A jury were empannelled who tried the issue and rendered the following verdict: “Upon their oaths do say, the said defendants, Daniel Slack, David Coon, Lewis Cason, and Harry Andrews, did assume upon themselves, in manner and form as the said plaintiff in his said declaration hath alleged against them; and assess the plaintiff’s damages by reason thereof, to the sum of fifty dollars and ninety cents; and they do further find that the said defendant, John Jones, did not promise and assume upon himself, in manner and form as the said plaintiff hath declared against him, as in pleading above the said defendant, John Jones, hath alleged.” Upon this finding the court rendered a judgment against the defendants, Slack, Coon, Cason, and Andrews, for the amount of the verdict and costs of the suit; as to the other defendant, Jones, the judgment was, that the plaintiff take nothing by his bill, &c., and that the said defendant, John Jones, go hence without day and recover of the plaintiff his costs, &c. . ,
    To this judgment a writ of error was prosecuted, and it was assigned for error, that the court erred in rendering judgment upon the verdict for the plaintiff against any of the defendants, as to all of them. The judgment should have been, that the plaintiff take nothing, &c.
    Gildart, for plaintiff in error.
   Mr. Chief Justice Sharket

delivered the opinion of the court.

The defendant M‘Gahey declared in assumpsit against the plaintiffs to recover the value of a barbecue or dinner furnished for a public company on the 4th of July, 1829. The plea was non assumpsit, and the jury found against four of the defendants, and assessed the damages to fifty dollars and ninety cents; and they also found that the other defendant did not promise, &c.

The judgment is, according to the verdict, against four of the defendants, and in favor of the fifth. This was irregular, as the plaintiff must recover against all the defendants or none of them. 1 Chitty, 50.

The judgment must be reversed and cause remanded.  