
    Williams and another against M'Fall and another.
    In Error.
    WRIT of error to the District Court for the' City and County of Philadelphia.
    
      Heed Williams and Adatn Seckel, on 17th September, 1811, issued a capias ad respondendum in case, in the Court below, against Daniel M'Fall and David Millington, returnable to December Term, 1811, to recover damages upon a joint contract. On the following day, Millington acknowledged service of the writ, and confessed a judgment to the plaintiff in, the sum of 2,631 dollars, 19 cents. A ji. fa. was issued upon this judgment, returnable to December Term, 1811, which was levied upon the ship Rose. in Bloom, subject to former levies, and the vessel was sold for 500 dollars. M'-Fall, the other defendant, entered special bail, pleaded, non assumpsit ' < and payment, upon which issues were joined, and on 30th March, 1814, went to trial, when the jury found a verdict for the plaintiffs for 1,522 dollars, 88 cents damages, upon Which judgment nisi was entered. A rule -was then obtained by the defendant to shew cause why the judgment should not be arrested, and why a new trial should not be granted. The opinion of the court was delivered by
    
      In assumpnit against two upon a joint contract, if one of the defendants confess a judgment for a certain sum, and the other plead the general issue, go on to trial, and a verdict pass against him for a smaller sum, judgment cannot be entered on the verdict, nor can judg- ' ment he en- < tered for such defendant. but the judgment confessed will stand agajnst him who confessed it.
    
      Judge Sergeant. This is an action against two, in which the suit is indebitatus assumpsit, to.recover damages upon a joint contract. Before the return of the writ, one of the defendants, Millington, acknowledged service of the writ, and confessed judgment to the plaintiffs in the sum of §52,631 19 cts. upon which confession the plaintiffs'-entered up judgment, issued execution, and levied upon personal property, but no part of their demand was received therefrom. After these proceedings, the other defendant, M'Fall,, entered special bail, pleaded the general issue, and upon trial, a verdict was found in favour of the plaintiffs, for the sum of upon which a motion is now made to arrest the judgment.
    By the course of proceeding adopted by the plaintiffs in this case, they have involved it in an embarrassment from which it is not easy to extricate them. Regularly where an action is brought against two for a tort, and one makes default, or confesses the action, and the other pleads to issue, it is held, that the assessment of damages shall not be several, but the same jury that tries the issue, shall assess the damages against both. (11 Co. 5, 6.) : and where such plea goes in discharge of the whole cause of action, the other defendant may take advantage of it. (l-Stra. 610, Ld.Raym. 1372.~) It is also held, that in an action of debt against two, if one confesses the action and the other pleads a release, the plaintiff shall not have judgment against him who confessed the action till the issue'tried. (14 Vin. Ab. 600.) ; and in cases of Contract, generally, as in covenant, assumpsit, &c. the plea of one defendant, for the most part, enures to the benefit of all: for the contract being entire, the plaintiff must succeed upon it against all or none. (Tidd's Pr. 591. 2 Grvill. Bac. Ab. 273. In cases of tort, as well as contract, against more than one, the final judgment must be joint, inasmuch as the cause of action is joint; it is not permitted to enter separate final judgment against each defendant.
    
      In the case under consideration, the judgment entered against Millington, being for a sum certain, cannot be consijn any other light than as a final judgment; and being a final judgment, entered against Millington alone, how can the plaintiffs afterwards proceed to demand and recover a joint judgment against Millington and. M'-Fall, or a separate final judgment against M'-Fall only. In a suit against two, there cannot be two final judgments entered, either each separate, or one separate, and the other joint. Such a proceeding is ii'regular in the first case, and contradictory in the second. Besides, notwithstanding Millington's confession., he is, according to the principles before stated, entitled to the benefit of M-Fall's plea, should that plea afterwards be one that goes in bar of the action, and yet it is hard to conceive how Millington could take advantage of such plea after a final judgment had been entered against him. Such judgment must bind him till reversed. Even were it irregular, yet the plaintiffs cannot take advantage of this, since it is their own act, and, being given by a court of competent jurisdiction, is in full force and effect. The plaintiff, in this case, had his election, either to wait till M'-Fall came in, and then to proceed to joint judgment, against both defendants; or, if he preferred it, to wave that, and to seek the recovery of his demand, by a separate proceeding .against Millington. He has made this election, and by taking judgment and execution against Millington only, seems to have severed the joint action, and acknowledged it to be separate, and thereby put it out of his power to enter another judgment while that is in force. The Court are of opinion that they cannot give another judgment in this case, against M’-Fall separately, nor against Millington and M'-Fall jointly. They, therefore, direct the judgment to be entered for the defendant.
    The judgment being thus arrested, the plaintiffs removed, the case, by writ of error, to this court, where they assigned as errors:
    1. That a verdict having been given in favour of the plaintiff on the general issue, pleaded by M'-Fall, the defendant below, judgment ought to have been entered thereon.
    2. That the Court below gave judgment for the defendant, M'-Fall, when it appeared from the whole record that he was, jointly with David Millington, indebted to the plaintiffs in the sum of 1,522 dollars, 88 cents.
    
      3. That, from the whole record, it appears, that at the time MiFall, the defendant below, pleaded the general issue on •which a trial was had, and a verdict passed against him, he was fully aware that Millington had already confessed judgment to the plaintiffs in the sum of 2,631 dollars, 19 cents. His pleading and going on to trial, were therefore a waver of any objection arising from Millington’s confession of judgment.
    4. That the right of action being established, as to one of the defendants below, by his own confession, and. as to the other by the verdict of a jury, the difference in the amount of damages, although it would protect the defendant against whom the verdict was given, from execution for a larger sum than was found by the jury, could not affect the plaintiff’s right to a judgment for some amount, which the court ought to have fixed at the sum for which the verdict was given.
    5. That, upon the whole record, judgment ought to have been given for the plaintiffs, and not for either of the defendants.
    After argument by Shoemaker and Rawle, in support of these exceptions, who cited Bender v. Fromberger.
      
       3 Black. 393, 4, 5. 1 Chitty, 401. Gilb. Hist. of C. P. 157. Banbury’s case.
      Curl v. Clinton,
      
       Vavasor v. Faux.
      Weller v. Goyton.
      
       Fleming v. Langton.
      
       4 Bac. Ab. Pleading, 322. Gilb. Hist. of C. P. 62, 63. 156, 157. Rice v. Shute.
      
       Abbott v. Smith.
      
       Sheehy v. Mandeville.
      
       Fish v. Weatherwax.
      
       3 Black. 398. Act of 21 March, 1806. Purd. Ab. 263. Cro. Eliz. 701. 1 Vern. 465. 1 Salk. 23. 6 Co. 40 b. 46 b. Watson on Partnership, 330. 11 Co. 5. 5 Co. 86 b. Cro. Jac. 73. 14 Vin. 598. L. pl. 6. Id. 599. pl. 12. pl. 14. Bro. Exr. 39. Bro. Judgt. 87. Bro. Tresp. 44. and by
    
      J. R. Ingersoll and Lewis, for the defendant in error,
    who cited 1 Tid. Pr. 125. 138. Edwards v. Carter
      
       U. S. v. Parker
      
       14 Vin. 607. Bro. Bond. pl. 71. Id. Judgt. pl. 23. Went. Off. Ex. 116, 117. 6 Co. 45. 2 Johns. 220. Hob. 279. 8 Co. 120. 133. 1 Chitty, 475. Co. Ent. 36, 7. Bunb. 199. 3 
      Woodison, 359. Bull. N. P. 20, 11 Co. 5 b. Id. 8 a. 1 Saund. 207. Imp. pr. 349. 351. 369. Lil. Ent. 57. Id. 137. Stat. West. 1. ch. 1. 2 Inst. 285. Hob. 59. Sid. 76. Id. 378. 12 Mod. 558. Cro. Car. 54. Cro. Jac. 118. 2 Saund. 107. 10 Mod. 277. 1 Saund. 109. 2 Saund. 296.
    
      
      
        а) 4 Dall. 439.
    
    
      
       3 Salk. 313.
    
    
      
       3 Salk. 214.
    
    
      
       1 Wils. 88.
    
    
      
       1 Burr. 357.
      
    
    
      
      
         1 Str. 532.
    
    
      
      
         5 Burr. 2611.
    
    
      
      
        2 W. Bl. 947.
    
    
      
       6 Cranch, 263.
    
    
      
       2 John. Cas. 215.
    
    
      
      
         1 Str. 473.
    
    
      
      
         2 Dall. 373.
    
   The Court

affirmed the judgment of the Court below, against David Millington, and also the judgment so far as it arrested the judgment against Daniel M'Fall, and reversed the same, so far as it was a judgment for the said Daniel M-Fall, and ordered the record to be remitted.  