
    * James Wilson, Plaintiff in Error, versus Ephraim Mower.
    If an action be commenced and pending in the name of A., B., and C., jointly, and A. becomes nonsuit, so that the defendant has judgment against all the plaintiffs for his costs, which are paid upon execution by B., in an action by B. against A., to recover one third of the costs paid, A. shall be permitted to give in evidence that the former action was commenced without his knowledge or consent, and that he had no interest in the suit.
    The judgment, the record of which was removed by this writ of error, was rendered in the Court of Common Pleas for this county, December term, 1808, in an action commenced before a justice oí the peace, to recover the sum of nine dollars, forty-five cents, for so much money laid out and expended by Mower for the use of Wilson, and carried by appeal to the Common Pleas.
    As, by the statute of 1803, c. 154. <§> 5., no appeal lies to this Court, where the sum demanded is less than fifty dollars, the plaintiff in error filed his bill of exceptions, to the direction of the Court in a matter of law ; which being allowed was signed and sealed by the chief justice of the Common Pleas.
    From the record, of which the bill of exceptions constitutes a part, it appears that in the trial of the cause it was stated by the plaintiff, and admitted by the defendant, that the plaintiff and defendant, together with Abraham Lincoln, Esq., were associated together as trustees in the management of a newspaper called the National ASgis, and had employed one Samuel Cotting as printer and publisher of the said paper; — that an action was commenced against said Cotting, by the direction of the said Mower and Lincoln, in the joint names of said Mower, Lincoln and Wilson, to recover damages for certain alleged breaches of his contract; — . that after the said action had been commenced, and pending the same at the second term in the Court of Common Pleas, Cotting, the defendant, caused to be filed in said Court a written certificate of the following tenor, viz. “ In the action, Abraham Lin coin, Ephraim Mower and James Wilson, plaintiffs, against Samuel Cotting, defendant, my name having been inserted in the writ without my knowledge or consent, I hereby agree to become non- [ *408 ] suit. * Dec. 10th, 1806. James Wilson.” Upon the production of which, the said Court of Common Pleas ordered a nonsuit to be entered, and judgment was accordingly rendered in favor of said Cotting against the said Lincoln, Mower and Wilson, for twenty-six dollars and seventy-one cents, costs ; that execution issued upon said judgment against the said Lincoln, Mower and Wilson, and that the amount thereof, together with the officer’s fees thereon, were paid by said Mower; for the recovery of one third part of which sum the principal action was brought.
    The defendant Wilson offered evidence to prove that the action above stated against the said Cotting was brought, and his own name used, without his, Wilson’s, knowledge or consent, and after he had withdrawn himself from the connection with the said Mower and Lincoln, and another person had been appointed in his stead; that there were separate counts for a tort, and upon contract joined in the declaration, and therefore that the action could not have been maintained. But the Court below were of opinion, and did direct the jury, that the evidence resulting from the judgment, execution and payment thereof by Mower, the plaintiff, was in law conclusive against the defendant Wilson, and upon this direction a verdict was found accordingly in favor of the plaintiff Mower.
    
    The errors assigned are, 1. Because it appears, by the record and proceedings aforesaid, that in the trial of said cause, the said Court refused to admit the evidence offered by the defendant as above recited : 2. Because the Court directed the jury that the evidence produced on the part of the plaintiff was in law conclusive against the defendant, in pursuance of which direction a verdict was found against him: ,3. The general error.
    The judgment of the Common Pleas was supported by [ *409 ] Lincoln, of counsel for the defendant in error, and * impeached by Bigelow and Blake, of counsel for the plaintiff in error.
    
      For the defendant in error
    
    it was argued that he, with Lincoln and the plaintiff in error, had jointly a good cause of personal action against Cotting; — that the action could not be maintained, un less sued in their joint names; — that when the plaintiff in error refused to prosecute and became nonsuit, it was the nonsuit of all the plaintiffs, as summons and severance did not lie in the action; and that the nonsuit of the plaintiff in error was a fraud upon his partners in the contract, of which he ought not to avail himself in throwing all the costs on the other plaintiffs.
    
      For the plaintiff in error
    
    it was denied that, at the time the action was commenced, he had any joint interest with Mower and Lincoln ; that there was any joint good cause of action. It was also insisted that if the plaintiff in error had not been nonsuit, still the plaintiffs must have failed in that suit, as tort and contract were joined together; and that the action was commenced without his knowledge and consent.
   The opinion of the Court was afterwards delivered to the following effect by

Parsons, C. J.

The record before us shows that the Common Pleas were of opinion, that the facts offered in evidence by the plaintiff in error were not to be inquired into, as being irrelevant to the is sue on trial; and that the judgment, execution, and satisfaction of the execution by the defendant in error, were conclusive evidence against the plaintiff in error; that the jury were directed agreeably to this opinion, and found a verdict pursuant to the direction.

We are satisfied that this opinion was wrong and erroneous. If it were not so, any man might claim, without any foundation, to have jointly with another a good cause of personal action, and might, without his knowledge *or consent, sue a writ in [*410 J their joint names, and failing because there was no cause of action, charge a man ignorant of the suit with one half the costs.

The judgment may be conclusive as between the plaintiffs and the defendant; but it certainly is not among the plaintiffs, so as to conclude either plaintiff from disclosing the truth, when called upon to contribute to the payment of costs incurred without his knowledge or consent, and especially in a suit in which he claimed no interest.

The original defendant therefore ought to have been admitted to prove, if he could, that he had jointly with the other plaintiffs no cause of action against Cotting; or if he had, that he would not join in suing the action, and that it was sued without his consent. This evidence the defendant in error might have rebutted by proving, if he could, that Wilson was jointly interested, and that he assented to the suit, either expressly, or by a reasonable implication, and the jury would have decided according to the weight of evidence

For, although the assent may not be expressed, it may be reasonably implied from other facts. As in the present case, if ?t should appear that after the writ was sued out, Wilson had knowledge of it, and knew that he was named a ioint plaintiff, that he made no objection, but laid by, that he might not contribute to the expenses of the suit, yet have the benefit of it, if the plaintiffs should prevail ; and afterwards, from favor to the defendant, or for any either cause, should become nonsuit, such conduct in him might be evidence of an assent by him to the action.

If, however, after he had knowledge of the suit, and without any unreasonable delay, he refused to prosecute, and became nonsuit, he very, clearly Would not be obliged to reimburse the other plaintiffs any part of the costs of the nonsuit. [*411 ] *It has been inquired what remedy a man has, who has a good cause of action, where no severance lies, with another who will not consent to prosecute. It is his folly, saith the law, to be concerned with such a man. But as any one of the parties interested in a personal action, may release it, if it was released, the releasor would be accountable to his partners in the contract for the damages they had sustained. And if one of the parties should unreasonably refuse to join in the prosecution of an action, which might well be maintained, perhaps the other parties might have a remedy by a special action of the case. But of this we give no opinion, as the point is not before us.

As we are of opinion, that the direction of the Court below was erroneous, judgment must be reversed, and a new trial be ordered, in which the party may have an opportunity to introduce the evidence that has been rejected. As we have a jury in this Court, it is unnecessary to send the parties to the Common Pleas for another trial Therefore let the new trial be had at the bar of this Court . 
      
       Vide Keyes, in error, vs. Stone, ante, p. 391.
     