
    GEORGE B. ABRAMS vs. JOHN A. DE WANDALAER, AND WILLIAM S. LINCOLN, AND CHARLES D. WILLARD, TRADING UNDER THE FIRM-NAME AND STYLE OF LINCOLN & WILLARD.
    At Law. —
    No. 12228.
    During the progress of a trial the court may allow a dismissal, or nolle prosequi, as to one or more of the defendants in a suit against several, when the evidence in the case shows a liability against those only who are retained as defendants.
    STATEMENT OF THE CASE.
    The declaration states in substance that the defendants, -•about the 25th of September, 1873, agreed, in consideration that the plaintiff would furnish certain apparatus and superintend the mixing materials for a pavement, known as the Scharff pavement, and would superintend the laying of such pavement on Fifth street, from G to New York avenue, for the laying of which the defendants had a contract from the board of public works, the defendants would pay him, plaintiff, the sum of twenty-five cents for each square yard of pavement when laid; that the plaintiff performed his part of the ■contract; that 7,395 square yards of pavement were laid, whereby the plaintiff was entitled to $1,848.75.
    The declaration further claims that the plaintiff had performed one hundred and fifty-six dollars’ worth of extra work, and gave a credit for $160, by way of payment. The common counts in assumpsit are added. To this declaration the defendant, DeWandalaer, filed pleas that he was never indebted, and that he did not promise as alleged.; and the defendants, Lincoln & Willard, interposed separate pleas to the same effect.
    On the trial of the cause, the plaintiff gave to the jury evidence tending to prove that the said plaintiff, on or about the 20th day of September,, 1873, was employed by the defendant Willard to furnish certain apparatus • and superintend the mixing of materials and the laying of a concrete pavement on Fifth street, in the city of Washington, and ■agreed to pay him therefor the sum of twenty-five cents per square yard of pavement so laid by him, and that the plaintiff commenced work on the next day under said agreement, and, on the 2Sth day of November, 1873, had so furnished the apparatus, superintended the mixing of materials and the laying of 7,395 square yards of pavement on the said street; that, ■some time after the 20th of September, 1873, the defendant Willard told the plaintiff that it was necessary for him to make a contract with the defendant DeWandalaer also, and that he was one of the partners with Lincoln & Willard.
    To the admission of their testimony the counsel of defendant objected. The court overruled the objection, and an exception was noted.
    The plaintiff then offered in evidence a contract, under seal, entered into by and between said plaintiff and the defendant DeWandalaer, bearing date September 25, 1873, whereby the said plaintiff bound himself to furnish certain apparatus, superintend the mixing of materials, and the laying of a certain pavement on Fifth street, in Washington City, for which said DeWandalaer agreed to pay said plaintiff at the rate of twenty-five cents per square yard for the pavement so laid by the plaintiff. Whereupon the counsel for the defendants interposed, and insisted that said contract was not admissible in law upon the issues aforesaid, and prayed the justice holding the said court to exclude the said contract from the consideration of the jury. But the said justice allowed said contract to be read, and then excluded it from the consideration of the jury, and decided that said contract could not maintain the issues in this cause on the part of the plaintiff.
    The plaintiff, by his counsel, then moved the court to dismiss the cause as to tlie defendant DeWandalaer, which motion was granted, and the counsel for defendants excepted ; and the trial then proceeded against the defendants Lincoln and Willard alone, upon the ground that there was no evidence of a joint liability of DeWandalaer with Lincoln & Willard. The statute, where money is payable by joint obligors, reads as follows: .
    “ Where money is payable by two or more persons jointly or severally, as by joint obligors, covenantors, makers, drawers, or indorsers, one action may be sustained, and judgment recovered against all or any of the parties by whom the money is payable, at the option of plaintiff.” Bev. Stat., sec. 827.
    There were several exceptions to the admission of evidence- and the instruction of the court to the jury, which need not be stated, as the only point passed upon by the decision was-as to the power of the court below to dismiss one of several defendants from the cause and to proceed with the trial, against the others in an action of this character.
    
      S. R. Bond and L. G. Hine for plaintiffs:
    So far as this exception relates to the decision of the justice granting the plaintiff’s motion to dismiss the action as to-the defendant DeWandalaer, we maintain that it was not well taken.
    The act of Congress (14 Stats, at Large, p. 405, sec. 20) provides that where money is payable by two or more persons, jointly or severally, one action may be sustained and judgment recovered against all or any of the parties, at the option of the plaintiff j and the 11th common-law rule of this court is based upon that statute. It follows a fortiori that the plaintiff may dismiss his action as to one or more and' proceed as to the others. The disposition of the courts under the strict rules of the common law, without the aid of any statute, to allow a dismissal of the action as to one joint contractor, in furtherance of justice, is shown in Salmon vs. Smith, 1 Saund., 207, note 2; United States vs. Leffler, 11 Pet., 86; Minor vs. Mechanics’ Bank, 1 Pet., 46.
    In this last case the court say: “ If the plaintiff may, in any case, recover a judgment against one on a joint action against two who sever in their pleadings, it is wholly immaterial to the regularity and effect of the judgment in what stage of the cause the suit has ceased to be prosecuted against, the other,” and holds that the dismissal ought to be allowed against one defendant as a practice which violates no rules of pleading, and will generally subserve the public convenience.
    But in Deloach vs. Dixon, Strong, and Curl (Hempstead’s C. C. 428,) we have the construction on this point of a. statute to the same effect as our own. The statute of Arkansas, where this case arose, provides that u every person who may have cause of action against several persons, and entitled by law to but one satisfaction therefor, may bring suit jointly against all or as many of them as he may think proper.” The suit was in assumpsit against the three, upon the assignment by them to the plaintiff of a promissory note. Process having been served on all, they pleaded that Dixon was not a citizen of Arkansas. Plaintiff dismissed the suit as to Dixon, and the other defendants moved for judgment in their favor. The court denied the motion, saying: “ The plaintiff could have sued Strong and Curl without joining Dixon. If so, are Strong and Curl at all prejudiced by the institution of suit against all three and its dismissal as to one of them.” The court held that, as plaintiff might have sued any of the defendants, the right of election continues till final judgment, and commended the rules as calculated to suppress litigation, and as a contrary practice would often compel a party to bring several suits to guard against the effect of a discontinuance of the entire action.
    In Lampkin vs. Chisom, 10 Ohio St., 450, the court say: “ The common-law rule that, where a joint contract is the subject of an action, the recovery must be against all or neither of the defendants, has been modified by the 371st section of the code of civil procedure, so as to authorize judgment to be rendered for or against one or more of several defendants where it turns out upon the trial that only one or more of several defendants in such joint action is liable, without'subjecting the plaintiff to the necessity of bringing a new action against such defendant or defendants.”
    The dismissal of the action as to DeWandalaer carried with it and was in effect an amendment striking his name out of the declaration, which, under the statute of jeofails and Rule 7 of this court, may be made at any stage of the cause.
    In Eakin & Co. vs. Burger et al., 1 Smed., 417, the court say: “ The general rule in respect to statutes of amendments and jeofails is, that the amendments need not in point of fact be made. The benefit of the statute is obtained by the court’s considering the amendments as made,” citing 3 Black. Com., 407, and 1 Saund., 228, note 1.
    
      
      Enoch Totten for defendants:
    The admission of evidence touching the alleged verbal agreement made by the two defendants forming the copartnership was error. A declaration for breach of a joint contract, whether it be framed in assumpsit, covenant, debt, or case, cannot be supported by evidence of a contract by a part only of the defendants, and a verdict or judgment cannot in such an action be given against one defendant without the other. 1 Chitty’s Pleadings, 44, 45; Weall vs. King, 12 East, 454; Shirreff vs. Wilkes, 1 East, 52; Buller’s N. P., 129; Max vs. Roberts, 5 B. & Ps., 454; Snyder vs. Finley, 1 MacAr., 220. And the plaintiff cannot dismiss this suit as to one or strike out the name of one of the defendants and proceed as to the others. Buller’s N. P., 129; Weall vs. King, 12 East, 454: Cooper vs. Whitehouse, 6 C. & P., 545; 1 Chitty’s Pleadings, 45 and notes; Tuttle vs. Cooper, 10 Pick., 281.
   Mr. Justice Humphreys

delivered the opinion of the court:

In this case suit was instituted against DeWandalaer, Lincoln, and Willard. During the trial in the circuit court, after evidence showing that Lincoln & Willard alone were bound, if any of the parties were, the plaintiff moved for leave to enter a nolle proseguí as to DeWandalaer, which motion was granted, and the cause proceeded against Lincoln & Willard.

The main question assigned as error is the power and propriety, in practice, of the court to allow a dismissal or nolle proseguí as to one or more of the parties in a suit against several, when the evidence shows a liability against those only who are retained as defendants.

A majority of the court is of opinion that, in order to save litigation and further the ends of justice, according to the established rules of law, this may be done during the progress of the trial as well as when the trial begins.

It will be found by the antiquarian in legal lore to have been the rule at common law that, after writ issued and before declaration filed, the plaintiff could declare against one or more who had been summoned by the writ, as he might be advised. Our statutes and rules in furtherance of a more progressive idea have reserved the same rule at any stage of the trial. Not only this, but, even where there is a j oint obligation of covenant, “ an action may be sustained and judgment recovered against all or any of the parties by whom the money is payable, at the option of the plaintiff!” Bev. Stats., sec., 827.

At common law, the declaration could be amended by the writ or the declaration could be against some or all the parties in the writ. Finally, the declaration must be the chart by which to proceed. 1 Chitty’s Archb. Prac., Q. B., 236, 237, also 223 ; 2 ibid., 1466,1467.

Buie 7 authorizes amendments to be made at any stage of a cause, for the purpose of determining the real question in controversy between the parties, even if the defect or error be that of the party applying to amend.

By the common-law rules, the party was forced to rely upon his declaration, and upon that to rest and stand, and after trial begun he could offer no further amendment.

He may now have the benefit of these rules down to the time the jury retires.

In equity, even after a cause has been submitted, the pleadings may be amended to conform to the evidence. Statutes have been enacted to give the law courts power to mete out justice in a cause.

It will be seen by reference to the change made in England in 1852, in the practice, that our Buie 7 is a copy, “verbatim et literatim,” of the rules introduced in the practice there. The construction given by the-highest court in that country of their statutes and rules would certainly be a precedent to govern us in the construction of similar statutes and rules. In fact, we borrow from each other — we being the younger are the larger borrowers; we try to express our meaning in the English language, and we pay enough respect to each other to consider that similar rules, in the two countries, are expounded in the same way by each, and each is ready to follow the exposition first made. Hence, the construction given by the British courts of their own statutes, of which ours are copies, have always been followed in our courts, unless some local or constitutional limitation imposed the necessity of departing from their construction.

A technical discontinuance would be proper where several were sued and some only served with process.

A dismissal is another mode of disposing of a suit, and a nolle prosequi another.

Mr. Justice Olin

delivered the following dissenting opinion :

Before inquiring into the proper meaning and true construction of our statute, sec. 827, Rev. Stats., it will be well to consider what the law was.

Prior to the adoption of this statute, and by a comparison of the law with the statute, we can readily discover in what respect the common law was sought to be changed.

I now quote from Gould on Pleading, sec. 116, p. 280: “If, on a contract made by one person only, he and another are sued as upon a contract made by both, the misjoinder is a good ground of defense under the general issue;” and he adds, “For the contract made is not the same as that declared upon,” 1 East, 48; 2 Day, 272; 2 New Rep., 454; 11 Johns., 101; 1 Esp., 363; and in the same section it is-stated: “And in- an action against two joint contractors, asin assumpsit against A and B, as joint promisors, if thejury find that A promised, but that B did not, A may arrest the judgment; 3 East, 62; 1 Keb., 284; Carth., 361; 3 Brod. & Bing., 54. Judge Gould adds: “For the contract declared upon is disproved by the verdict; ” and, further: “And when an action is thus brought against two, upon a contract made by one of them only, the plaintiff cannot enter a nolle prosequi as to the other, and then proceed against the party bound alone.” See 4 Taunt., 470; 3 East, 76; 5 Johns., 160; 1 Pick., 500. “For to allow this would be to enable the plaintiff, by his own act, not only to defeat a good defense upon the merits, but also to substitute one action for another, or rather to transform an action against A and B into an action against A alone.”

Thus stood the law of this District prior to the passage of the act of 22d of February, 1867, vol. 14, p. 405, Statutes at Large, several sections of which act are incorporated in the recent revision of the laws of this District.

We are now prepared to consider the true meaning and intent of section 827, a section which is almost a literal copy of a statute passed by several State legislatures nearly fifty years ago. It enacts that where money is payable by two or more persons jointly or severally, as by joint obligors, covenantors, makers, drawers, or indorsers, one action may be sustained, and judgment recovered against all or any one of the parties by .whom the money is payable, at the option of the plaintiff. This statute was intended to remedy two defects in proceedings at comman law. First:-If a plaintiff sued one person upon a contract in which another person was jointly liable, the person sued might interpose a plea in abatement, in substance, that some person not sued was jointly liable with him, and if the plaintiff took issue upon that plea, and that issue was found against him, the suit would abate.

Under this section, (827,) a plea in abatement, by reason of the nonjoinder of all the parties to the contract, is no longer available. The second object sought to be obtained by this section (827) was that the plaintiff might commence a suit against all persons who were jointly or severally liable to him, such as makers, drawers, or indorsers, any one of whom, or all of whom, may be sued, and a recovery had in the same action. At common law no action could be maintained against the maker and indorser of a promissory note; nor could an action be maintained against the covenantors in an instrument under seal, and against a party who guaranteed the performance of the covenants of the deed; in short, this wipes out the plea in abatement in suits ex contractu, by reason of all the joint contractors not being proceeded against in the same suit; and, in the second place, allows an action to be brought against parties who are not joint contractors, but severally liable in the same contract as guarantors, in-dorsers, &c., of the same contract. This section allows the plaintiff to select any one or more of several joint contractors, or those severally liable on the contract, and proceed to judgment against them, if he can but establish their joint or several liability on the contract sued upon; but it nowhere anthorizes or intimates that the plaintiff may join in a suit ex contractu any and everybody at his pleasure; and, failing to. prove the liability of all the parties defendant, he may, nevertheless, have judgment against some one of the parties sued, if he can establish, by proof, the liability against one of the parties sued. In short, this act does not touch, or pretend to touch, the rule of the common law; but where more defendants are sued than can be proved liable, the action will abate, and the plaintiff must be non-suited. And this objection may be taken at the trial under the plea of the general issue.

In this case I think the judgment of the court below ought to be reversed.  