
    Quigley v. Merritt et al.
    
    Ia actions ex contractu, as well as in those ex delicto, the plaintiff may enter a nolle prosequi as to a part of the defendants, when they sever in their pleas, and plead matter going to their personal discharge.
    So, when they simply sever in their pleas, without looking at the matter of the plea.
    Tn an action on an implied assumpsit against several defendants, a nolle prosequi as to a part of the defendants, is not regarded as a retraxit or release, and therefore, it does not operate to discharge the other defendants.
    Where in an action against several defendants, for money had and received for the use of the plaintiff, the defendants severed in their pleas, each pleading matter going to his separate discharge; and where on the trial, after some testimony had been given to the jury, the plaintiff entered a nolle • 
      prosequi, as to all the defendants, except one; and where the court, on motion of the remaining defendant, held that the nolle prosequi operated to dismiss the action as to the remaining defendant also, and the action was dismissed ; Held, That the court erred in dismissing the action.
    
      Appeal from, the Dubuque 'District-Gourt.
    
    ■ The plaintiff sued the defendants for money had and received to his use. The defendants severed in their-pleas, each pleading matter pertaining to himself alone.' Rogers denied having received money to the use of -plaintiff; answering, however, that Booth, (of the firm of Barney & Co.), requested him to deliver certain moneys to Merritt, which he took and so delivered. • Barney & Co.-answer that plaintiff authorized Booth, one: of the firm,, to receive certain money coming to plaintiff, -from the United States, On a. surveying contract, and pay it- to certain persons, among whom was Merritt, and that Booth received it, and so paid it. Merritt answers that he received the money, and claims that he had a right to receive it, and also to hold it to his own use, upon grounds which are set forth. On the trial, some testimony having been given before the jury, the plaintiff entered a nolle prosequi as to all the defendants, except Merritt, whereupon, on motion of the counsel of Merritt, the court held that this nolle prosequi operated to dismiss the action, as to the remaining defendant also. From this decision, the plaintiff appeals.
    
      Smith, McKinlay & Poor, for the appellant.
    ■ ei Burt-, and -Samuels & Gooley,. for the- appellee.
   Woodward, ¿T.

In actions ex-contractu, as well as in those ex delicto, the plaintiff may enter a nolle prosequi as to part of the defendants, when -they sever in their pleas, and plead matter going, to their personal discharge. : 1 Saund. 207, a, b; Noke v. Ingham, 1 Wils. 89, and see 3 Esp. 77, S. C.; Jac. L. Diet, title Nol. Pros. And this, is probably so, when they simply sever in- their pleas, without looking at tbe. matter of tbe plea. S'aund. 'nt.' 'sup'. There is no. assumpsit in tbe present case, except as implied by tbe law; at least it may be so, for tbe action may be. founded on a wrong, but waiving tbe- tort. ' Tbe entering a nolle prosequi is not regarded as 'a retraxit or a release, and therefore, it does not operate upon tbe others. In those cases where it cannot be done, it stands upon other reasons. Tbe court should have permitted tbe plaintiff to proceed against tbe remaining defendant.

Tbe judgment is.reversed.  