
    JAMES DINWIDDIE, vs. LEWIS MARSHALL.
    
      On a writ of error to reverse a judgment of the Henry circuit court.
    
    
      6 June, 1820.
    
      Haggin for plaintiff, Talbot for defendant.
    A joint action on a joint undertaking by two, one pleads to the action, the other makes default and a writ of enquiry is awarded-it is proper if the issue is found against the deft who pleads to render judgm't against both: but irregular toenter judgment on the verdict and leave the writ of enquiry undisposed of.
   Judge Owsley

delivered the opinion of the court.

This was an action of assumpsit brought by Marshall against Dinwiddie and Roberts.

The writ was served upon both of the defendants, and Roberts failing to plead; judgment by default, and writ of enquiry was awarded against him. Dinwiddie pleaded non assumpsit, and issue being joined thereon, a jury was called to try the issue, and after bearing the evidence returned a verdict of $223 97 cts. in damages. Judgment was thereupon rendered againt Dinwiddie, and the cause continued as to Roberts

Upon ascertaining the plea of Dinwiddie not true it was incumbent on the jury, to assess the damages which Marshall sustained by the breach of promise alledged in the declaration; and having done so by their verdict, the judgment might have been entered against Dinwiddie and Roberts jointly; but according to well settled principles, as the action is joint, upon a joint assumpsit, it was irregular to render a separate judgment against Dinwiddie, and continue the cause as to Roberts. The judgment must, therefore he reversed with costs, the cause remanded and further proceedings had, not inconsistent with this opinion.  