
    Morgan M’Afee vs. Robert Patterson, et al.
    Where a scire facias, to revive a judgment at law, has been sued out, payment plead to the scire facias and judgment rendered in favor of the plaintiff, any errors in the original judgment cannot be inquired into, on an appeal to this court from the judgment on the scire facias.
    
    Where an original judgment has been obtained against two or more persons, and a scire fdcias is sued out to revive it, the plaintiff must make all the parties to the original judgment, parties to the scire facias; and if he discontinue his scire facias as to any of the parties, it operates as a discontinuance of the whole action.
    In such case, if one of the parties appears and pleads, and issue is taken and a verdict rendered, the statue of jeofails (How. <& Hutch. 691, § 11) cures the consequences of the discontinuance.
    In error from the circuit court of Yalobusha county.
    ' The defendants in error, Robert Patterson & Co. obtained a judgment in the circuit court of Yalobusha county, against Morgan M’Afee, William W. Mitchell, and John Colbert, partners, under the style of M’Afee, Mitchell & Co. on the 10th September, 1838, for $1009 55.
    On the 16th February, 1841, they sued out a scire facias on that judgment, which was duly served on M’Afee, and returned not found as to the other defendants. M’Afee pleaded to the scire facias, nul tiel record, which was overruled, and no exception taken. He also pleaded payment, to which plea issue was taken, and the jury found for the defendants in error. There was a discontinuance as to Mitchell and Colbert, upon whom no process had been served. Prom the judgment in this case this writ of error has been taken.
    The errors assigned are two :
    1: A defective service of process in the original judgment.
    2. The improper discontinuance on the parties not served with process.
    
      
      Fisher, for plaintiff in error.
    1. The writ in the record was not legally served upon the defendant, M’Afee.
    
      2. It was error upon the scire facias to revive the judgment, to discontinue as to two of the defendants thereto.
    A judgment is an entire thing, and cannot be abated as to some of the defendants, and kept in force as to the others. The law, after a year and a day, without execution, presumes that the judgment has been paid. The defendants, as to whom a discontinuance has been entered, may have paid the judgment, and therefore, should have been before the court before any trial was had upon the scire facias.
    
    
      Gholson, for defendants in error.
    The errors relied on for the plaintiff in error, are, 1. That the writ in the original action was not legally served upon M’Afee. ■ To this it may be sufficient to answer, that no exception being taken 'on overruling the plea of nul tiel record, the defendant below cannot now inquire into its sufficiency. The defect in the service, if any exists, could only be corrected by a writ of error to the original judgment.
    The other ground taken, is, that there was error in discontinuing as to the two defendants, as to whom there was a return of not found. Even if the plaintiffs, could not have proceeded as to M’Afee alone, the return of not found, justified the discontinuance.
    The error, however, if it be any, is cured by the statute of of jeofails, which provides, that, after a verdict, no judgment shall be reversed for any discontinuance. How. & H. 591.
   Mr. Justice Thachek

delivered the opinion of the court.

This is a writ of error to the circuit court of Yalobusha county.

On the 16th day of February, 1841, the defendants in error sued out a scire facias to have execution on a judgment recovered in said court on the 11th day of September, 1838. The original judgment, upon which the scire facias issued, was ob-lained against three individuals, composing a copartnership firm, of which the plaintiff in error constituted one. ' The process of scire facias was returned not served as to two of the defendants. There was a trial and verdict of a jury for the defendants in error against the plaintiff in error, upon an issue of payment.

Two errors are assigned. First, that the original judgment was erroneous, because of a defect in the service of the rvrit upon one of the defendants; and, secondly, because upon the trial of the scire facias the plaintiffs below dimissed the action upon the scire facias as to two of the defendants, who were also parties defendant to the original judgment.

The first point is not available under this proceeding as an error. The scire facias is a new. action, of which the original judgment constitutes merely the foundation. The inquiry now cannot reach back to the inspection of errors belonging to the original judgment. Such, if they existed, could only be corrected by a proceeding upon that judgment, through the means of a writ of error, or an appeal.

Upon the second point, it should be observed, that it is a rule, that where a judgment-creditor is desirous of reviving the judgment, he must make all the parties to the judgment parties to the scire facias, unless there be some obstacle that would excuse their joinder, upon the principles of the common law. The entry, then, of a nolle prosequi, as to any of the parties defendant, operates as a discontinuance as to all the defendants, because the action is against parties jointly bound. It is a discontinuance, technically so called, of the action. 20 J. R. 106, Executors of Morton v. Terre-tenants of Croghan. There are some exceptions to this rule respecting the effect of an entry of nolle prosequi. When defendants sever in their pleas, atfd one pleads some plea which goes to his personal discharge, and not to the action of the writ, the plaintiff may enter a nolle prosequi as to him, without affecting his remedy as to the others. 1 Saund. R. 207. . And so, where one pleads, or gives in evidence, a matter which is a bar to him only, and. of which the others cannot take advantage. 5 J. R. 160. 5 Wend. 228. It is unnecessary, in this behalf, to extend the investigation further; but it may be useful to add, that the whole doctrine relative to the nature and extent of a nolle prosequi, with a collection of authorities, can be found in Salmon v. Smith, 1 Saund. R. 207, n. 2.

In the case before us, the act of the plaintiff below, in entering a nolle prosequi as to the two defendants who were not served with a process operated as a discontinuance of the whole action, and the question now arises, whether the verdict of the jury, and the judgment thereon, are cured by the statute of jeofails. H. & H. 591, s. 11. That statute declares that no judgment, after the verdict of twelve men, shall be reversed, for any mispleading, insufficient pleading, discontinuance, mis-joinder of issues, &c. By the term discontinuance, in law, is meant either a voluntary withdrawal of the suit by the plaintiff, or, where from some technical omission, mispleading and the like, the suit is regarded as out of court. Graham’s Practice, 603. The statute, having already employed the word “mis-pleading,” leads us to infer that by the term discontinuance is intended in the statute the voluntary withdrawal of the suit by the plaintiff. The discontinuance, in this instance, occurred as the effect and result of the entry of the nolle prosequi. It was the legal consequence of that act, and that act was the voluntary act of the withdrawal of the suit by the plaintiffs below. There was no exception taken, or application for judgment made by the defendant at the time of the entry, and, we think the error in the judgment is cured by the statute.

Judgment affirmed.  