
    *Stephen Slipher v. Isaac Fisher and Lowen R. Cooch.
    In a suit against principal and surety, a plea, by the surety, that the time was extended without his consent, is had, not being an answer to the whole-cause of action.
    Proceedings may he arrestod at any stage of the case, when it is discovered . that judgment would be arrested after verdict.
    This is a motion for a new trial, in an action of assumpsit, from the countv of Butler.
    The declaration in this case is founded on a promissory note, bearing date August 12, 1838, for $770, payable twelve months after date, to the order of the plaintiff.
    The defendant, Fisher, filed the plea of the general issue; the-defendant, Cooch, a like plea; and also a plea in bar of the action, that after the note fell due the plaintiff contracted with the defendant, Fisher, to extend the time for the payment of the note one year, in consideration of the payment of ten per centum interest, which-was paid and indorsed on the note. The plea then-avers that Cooch was only a surety for Fisher, and that such agreement was without his knowledge or consent.
    On this plea issue was joined, and the cause came on to be tried1 before a jury at the last term of the Supreme Court, when the-defendant, Cooch, offered evidence of the facts set up in his special plea; but the court decided, and so instructed the jury, that such defense could not be made at law, but only in chancery. On this instruction Of the court the jury found a verdict for the plaintiff, and the defendant, Cooch, filed his motion for a new trial on the ground that the court mistook the law, and erred in their instruction to the jury.
    Elijah Yanoe, for plaintiff:
    The first question which presents itself is, whether the defendant, Cooch, when sued by Fisher, law, can be permitted *to set up the defense made by his special pleas; and, upon this question, it has been decided, in the ease of Farrington v. Galloway, 10 Ohio, 543, that where the suit is brought against the defendants jointly, and the matter offered in evidence was not a good defense as to all the defendants, one of them could not. take advantage of it to defeat the action at law, but his remedy is in equity. The authorities cited by the defendants’ counsel, to wit, 5 Ohio, 214 and 6 Ohio, 18, do not come in conflict with the decision of this court above quoted, for the reason that in the last mentioned cases the security, in the one case, and the representa tives of the security, in the other, were sued alone; and, as a matter of course, had a right to set up this matter of defense at law.
    The next question presented, by the motion now pending for a new trial, involves the inquiry as to whether the defendant has gained the right thus to defend himself at law, in consequence of an issue of fact having been taken upon his special pleas, instead of an issue at law. In the case of Thornton v. Sprague, Wright, 645, which was an action of replevin, the court decided that a plea, non cepit, is an immaterial plea, and, therefore, the issue being of no moment, the finding upon it secures no legal consequences, etc. See also 5 Ohio, 108. In Bates v. Cooper, 5 Ohio, 115, the court have said that, after a verdict, an objection to the form of the plea, either for the purpose of obtaining a new trial or a repleader, will not be received, etc., particularly if it appear not to be in furtherance of justice, etc.
    But there is another principle of law which, it is believed, may be properly called in aid of the settling of this point. A new trial will not be granted fora defect in pleading (5 Ohio, 108; 1 Johns. 510; 15 Johns. 212), and, most certainly, not in aid of the party who pleads an immaterial plea. Neither can a ropleader be granted in favor of the person who is guilty of the first fault in pleading. 1 Chitty, 694; 1 Ld. Raym. 170; Doug. 396, 747; 2 Strange, 994; 9 Bing. 532; 3 Hen. & Munf. 388. See also 5 Ohio, 108, 115.
    *Take, therefore, the ground assumed by the defendants’ counsel, that the pleas filed by him are immaterial, making an immaterial issue; still, when he has committed the.first fault, he- can neither insist upon a new trial, nor for the granting of a repleader.,
    It is scarcely presumable that the defendant will insist that a new trial should be granted him for the cause that he may have matters of defense, other than those disclosed by his pleadings.
    No argument for defendants came to the reporter’s hands.
   Wood, J.

To sustain this motion, the counsel for the defendant have cited the Bank of Steubenville v. Leavitt et al., 5 Ohio, 207, and the Bank of Steubenville v. Hoge et al., 6 Ohio, 18. In the first, the question was distinctly made, and appears to have been well considered ; numerous authorities cited on which the decision is predicated, and the doctrine unequivocally maintained that such defense may be made at law.

In the latter case, the same point was again before the court, and it is there asserted that when, by the forms of pleading, the evidence is admissible, the defense may as well be made at law as in equity; and delay should not be increased, and the expenses of litigation multiplied, by sending parties into another forum. These decisions, however, are inapplicable to the case at bar. There, the sureties only wore before the court, and it would have been strange, indeed, that any other rule should have been maintained. The pleas were full and perfect answers to the whole declaration.

In the case now before the court, no analogy is perceived. The suit is on a joint obligation. The writ issued against both principal and surety, was served upon both, and the declaration follows the process.

In such a case, at common law, judgment must be against both, or neither, except in the isolated ease of personal privilege, *as infancy, when judgment may be rendered against the adult alone.

This being the common law, and modified by no statute, where the suit is against all, it follows that whether the plea be joint or .several, it must be an answer to the entire cause of action.

If bad in part, it is bad for the whole. The plea in this case is .a bar for Cooch only, while it loaves the cause of action unanswered ..as to Fisher; and, upon the principle before stated, as it is bad for part, it is bad for the whole.

This question was distinctly presented to the court at the last term, on an application for the allowance of a writ of error. The .action was instituted on a note in hcec verba:

“$1,040. Six months after date, we, or either of us, promise to pay E. Farrington, or order, $1,040, for value received.” Signed “ Galway & Myers, Galway, Jr., George Myers.” Plea, the general issue.

On the trial, the defendant, George Myers, offered to prove that ho executed the note as security for the other defendants; that the plaintiif, at the time, knew it; that when the note became duo, the plaintiff, in consideration of the payment by the principals of a large sum of money for usurious int. rest, agreed with them to give further time to pay the note, until, etc. This evidence was rejected by the court, and a bill of exceptions taken. On the application being made for a writ of error, a non allocatur was indorsed by all the judges, on the ground that as the suit was joint, and the matter offered in evidence was not a good defense as to all of the defendants, one of them could not take advantage of it to defeat the action at law, but his remedy was in equity. On this application, it is true, we had not the aid of learned counsel to assist us in our conclusion, but it was, nevertheless, believed to have been well considered.

It is, however, argued by counsel that if the issue were immaterial, and the evidence offered is relevant, the court are bound to receive it, and after verdict award a repleader.

This court never hesitates to arrest the trial at any stage of the proceedings, when it is discovered, if a verdict is taken, *the judgment must be arrested. Any other course would be a useless delay of time, which the technical forms of proceeding should not be suffered to produce, unless in very special cases.

We think the court did not err, and that judgment should be entered on the verdict. Judgment for plaintiff.  