
    A. Fitch, Assignee of Jesse Debruhl, Sheriff of Richland, v. John H. Heise.
    Writ served on two and declaration against only one of them is a variance fatal on special demurrer.
    On a cause of action, several, as well as joint, plaintiff may discontinue as to the rest, declaring against one, by leave of Court, hut not otherwise.
    Before O’Neall, J., at Columbia, March, Extra Term, 1840.
    Action on the joint and several bond of Heise, Neuffer and Straus. The writ was sued out against them all, served on Heise and Straus, and returned non est as to Neuffer. The plaintiff entering on the writ a discontinuance as to Neuffer and Straus, declared against Heise alone. Demurrer for variance between the writ and declaration, was overruled by the Court.
    The defendant moved the Court of Appeals to reverse this decision.
   Curia, per Evans, J.

There can be no doubt that, according to our practice, a variance between the writ and the declaration is fatal on special demurrer. The decided cases, Young v. Grey, (1 McC. R. 211,) and Sargeant v. Hague, (2 Hill R. 585,) are cases of variance in the cause of action, and not in the parties to the suit, but this I do not consider can make any difference.

I think it equally clear that, where the cause of action is several, as well as joint, the plaintiff may at any time discontinue as to all the defendants except one, and declare and take judgment against him on his several promise, or obligation. This, however, does not authorize him to discontinue otherwise than according to the practice of the Court; and I think all the authorities are, that it can only be done by leave of the Court. (2 Sellon, 334; 3 Tidd. 159.) In this case the plaintiff undertook to discontinue by a mere endorsement on his writ. This was no legal discontinuance, and there was consequently a variance between the writ and the declaration. It is no answer to this to say, the motion is usually granted of course; so also are many others, such as leave to file declarations and to plead double. The motion to reverse the decision of the Court is granted.

See Post, 233; 2 McM. 346 ; 1 McM. 312; 2 Hill, 422 ; 2 Rich. 12; 3 Strob. 382. An.

Gregg, for the motion;

Blade, contra.

Gantt, Eichardson, and Earle, JJ., concurred.  