
    *Thomas Kennerly vs. John Walker.
    Where a verdict has been obtained against two defendants, upon a joint and several promissory note, and judgment has been entered up against both, and upon appeal, a new trial is ordered, unless the plaintiff discontinues as to one of the defendants: Held, that the plaintiff should discontinue before 1 ‘ scire Jadas” is brought.
    To permit a discontinuance of one defendant to a record to be entered on the trial of a “ scire facias, ’ ’ upon the plea of nul tiel record, would be irregular.
    A general demurrer to a special replication to the plea of ‘ ‘ nul tiel record, ” will be sustained, unless the replication denies the plea.
    Before Gantt, J., at Barnwell, Spring Term, 1840.
    This was a scire facias to revive a judgment entered up against the defendant,- John Walker, and one Mary Gavin, on the 30th October, 1826. The original action was on a joint and several promissory note, in which the plaintiff obtained a verdict, at Fall Term, 1826, and entered up judgment accordingly. The defendants on the trial, moved for a nonsuit, because the note was not proved as to Mary Gavin, which being refused, they appealed, and made the same motion in the Court of Appeals, on the same ground. The Court of Appeals were of opinion that the testimony was not sufficient to entitle the plaintiff to a verdict against Mary Gavin. “ But if it is a joint and several note he may retain his verdict against Walker, by discontinuing as to Miss Gavin ; otherwise the motion must be granted.” On the 13th March, 1835, the plaintiff sued out his writ of scire facias in this case against Walker alone, to revive the judgment, to which the defendant pleaded nul tiel record, on which issue was joined. At the July Term, 1838, the plaintiff obtained a rule on the defendant, to show cause on the first day of the next term, why the name of Mary Gavin should not be stricken from the record. The case stood thus until Spring Term, 1839, when the plaintiff obtained an order for leave, until the first day of October (then) next, to put in a special replication to the plea filed by the defendant. The plaintiff accordingly filed the following special replication : “ And the said Thomas Kenuerly, as to the said plea of the said John Walker, by him above pleaded, saith, that he, the said Thomas, by reason of any thing by the said John in that plea alleged, ought not to barred from *having and maintaining his action against him, the said John, because he saith, that although upon inspection of the record, it appears that the verdict in this case was against John Walker and Mary Gavin, yet the Court of Appeals, being moved by the defendants to set aside the verdict, concurred in the opinion that the testimony was not sufficient to entitle the plaintiff to a verdict against Mary Gavin, but they say, if the note is joint and several, the plaintiff may retain his verdict against Walker, by discontinuing as to Mary Gavin ; and this the said Thomas is ready to verify before the Court here, and thereupon he prays that judgment be given by the said Court” To this plea the defendant filed a geueral demurrer, in which the plaintiff joined.
    The case came on before his Honor, Judge Gantt, who, upon reading the opinion of the Court of Appeals, in conformity with the order of that Court, gave the plaintiff leave to discontinue as to Mary Gavin, and gave judgment on the pleadings and evidence for the plaintiff.
    
      The defendant appeals, and moves to reverse the judgment, because,
    1. The plaintiff was not entitled by law to discontinue as to Mary Gavin.
    2. On the pleadings and evidence, the judgment ought to have been for the defendant.
    The foregoing report consented to by the plaintiff’s attorney, with the statement which follows:
    The action was brought, originally, by Martin & Hay, and by Martin, the survivor of that firm, (on his promotion to the bench,) consigned to the present attorney for the plaintiff.
    The case stood upon the docket, marked new trial, until Fall Term, 1834, ■when it was discontinued, and before the present disposition thereof, has not been urged to a conclusion by either party. The opinion of the Court of Appeals not obtained during the pendency of this suit previous to Spring Time, 1840.
    
      Patterson, for the motion,
    on the first ground, contended that it was necessary to discontinue before the plaintiff could sustain his action of ‘ ‘ scire facias, ’ ’ and that by the order nisi of the Appeal Court, he could, within a year and a day, have *executed that order; neither was it necessary for the party to apply to the Court for order of discontinuance. No discontinuance being made within a year and a day, a nonsuit followed. After the lapse of twelve or fourteen years, it was supposed to be necessary to have the order of the Circuit Court.
    2. On the pleadings, the defendant is entitled to judgment they do not fortify the declaration. Mr. P. then pointed out a variance in the judgment and the declaration. The judgment, he contended, was against two, and the declaration against only one. He cited Com. Dig. Tit. Plead. 47; and further contended, that unless the replication denied the plea, the judgment upon the demurrer should be sustained.
    Mr. Gantt, contra,
    was absent.
   Curia, per

Earle, J.

The object of the motion made in the Circuit Court for leave to discontinue as to Mary Gavin, was to make the record uniform to the declaration, which set out a judgment against John Walker alone. No doubt the plaintiff might, after the judgment of the Court of Appeals, have entered his discontinuance as to Mary Gavin, and thus have retained his verdict against Walker. That judgment was pronounced in 1826. Within what length of time the plaintiff should have discontinued as to Gavin, in order to avail himself of the benefit of the decision, we will not undertake to determine here. It would seem at least that such discontinuance should have been entered before he brought his sci. fa. in 1835, at any time during that period. I apprehend the defendant would have been permitted to sign judgment of nonsuit, as the Court said “ otherwise (that is, if the plaintiff do not discontinue as to Gavin,) the motion must be granted.” We think it was irregular to permit such discontinuance to be entered on the trial of the sci. fa. upon the plea of nul tiel record. There was no such record as had been declared on, and the plaintiff was not entitled to the indulgence of being permitted to alter it so as to make it conform to the count.

Independently of that view of the plaintiff’s case, we are very clear that the demurrer to the plaintiff's replication ought to have been sustained. The very object of pleading is to set forth the facts necessary to the party’s recovery. Every ^material fact should be distinctly averred, that it may be traversed by the other side. When the plaintiff, therefore, sought to avail himself of the judgment of the Court of Appeals, in his replication, he should have averred that the note sued on was a joint and several note, and that in fact he had discontinued as to Mary Gavin. These were both material averments when he was about to offer in evidence a record and judgment against two, jointly, to support a declaration which set out a judgment against one. If in truth he had regularly discontinued before he brought his set. fa., it would have been a judgment against Walker only, and a special replication would have been unnecessary. Upon the pleadings, the plaintiff was not entitled to judgment. The motion to set aside is granted ; and it is ordered that the defendant have leave to sign judgment on demurrer.

See Treasurers vs. Buckner, 2 McM. 325, 1 Rich. 307. An.

O’Neall, Evans and Butler, JJ., concurred.  