
    Commonwealth v. Nesbitt.
    One of two obligees having been discharged as a bankrupt, the plaintiff may enter a nol. pros, as to him, and proceed to trial against the other.
    Error to the Common Pleas of Armstrong county.
    This was an action on a bail bond, to which one of the defendants pleaded his discharge in bankruptcy. On the trial the plaintiff entered a nol. pros, as to him, and went to trial against the other. On verdict, and judgment, and writ of error taken, this was assigned for error.
    Foster, for plaintiff in error,
    referred to 1 Chit. Pl. 45; 1 Wils. 89; 1 Saund. 207; Tidd, 682.
    
      Phelps, contra,
    cited 2 Rawle, 334; 1 Peters, 46 ; 2 Troub. & Haly’s Prac. 438; 1 Wils. 90; 4 Johns. R. 48; 9 Wheat. 289.
   Rogers, J.

— One of the defendants having procured his certificate of discharge, the plaintiff entered a nolle prosequi as to him, and this is assigned for error. But this is right, for it is well settled, that in an action on a contract against several defendants, one of whom pleads bankruptcy, or other matter in his personal discharge, the plaintiff may enter a nolle prosequi as to him, and proceed against the other defendants. 2 Tidd’s Prac. 796; 2 Troub. & Haly, 438; 1 Wilson, 89; 1 Saund. 207, N.; 1 Chitty, 451.

Judgment affirmed.  