
    Fotterall against Floyd.
    
      Tuesday, December 26.
    uP°n ,a judgment in trespass again9t several defendants, alonecannot maintain a writ of error.
    tIJt' take out a writ of all; to join in the prosecution of ¡tj they may ^the'c'ourt ** of error and which he who out the writ may go on alone; op ar,e ,na“L" ed as plaintiffs in the writ of n”°appearf° e!ther to appear and join i„ the prosecution of it, op submit to be severed,
    In Error.
    ON a writ of error to the District Court for the city J county of Philadelphia, the case appeared to be thus :
    
      John Floyd, the defendant in error, J
    
    brought an action trespass quar.e clausum fregerunt, &c. to March Term, 1819, against Caleb Cridland, Benjamin Cridland, Robert Black, Peter Case, jun. Stephen E. Fotterall, and George F. Alberti, to which a general appearance was entered lor all the ants. On the 26th August, 1819, the two Cridlands pleaded, not guilty, and justification, with leave, &c., on which issue . . ., , , . , ., .. r , was joined, andón the same day a rule to plead in lour weeks, or judgment, was entered against the other four defendant. Having neglected to plead within the time prescribed by the rule, judgment was signed against them on the 3d May, 1820, by order of the plaintiff’s attorney. On the same day, the r ' J 7 between Floyd and the two Cridlands was tried by a special jury, who found a verdict for the plaintiff, and assessed damages at 2000 dollars. On this verdict judgment was , .. . p. . . ’ and the plaintiff, without issuing a writ ol inquiry against those who were defaulted, afterwards issued afi.fa. against all the defendants, which was levied on the property of Fot- „ . , , p ter all only, who took out a writ ol error.
    
      P. A. Browne and J. R. lager soil, for the defendant in error,
    now moved to quash the writ on the ground that the judgment being against several, a writ of error by one could not be supported. If it could, each defendant might have his separate writ, to the great injury of the plaintiff. The writ should have been in the name of all the defendants, and those who did not choose to prosecute it, should have been summoned and severed, by which the plaintiff would have been protected from future writs of error. Gallagher v. Jackson, 1 Serg. Rawle, 492. Spencer v. Earl of Rutland.', Telv. 208, 9. Hackett v. Horne, Garth. 7. Walter v. Stokoe, 1 Ld. Ray, 71. Brewer v. Turner, 1 Sir. 233. Cooper v. 
      Ginger, 1 Str. 606. Vavasor v. Faux, 1 Wils. 88. Knox v. Costello, 3 Burr. 1789. Elkins v. Paine, 2 Ld. Ray, 1532. Andrews v. Bosworth, 3 Mass. Rep. 223. 6 Bac. Ab. (Wils. ed.) 400. 403. 407. Tidd’s Pr. 1053. Anonymous, Style, 406. Gerrard v. Arnold, 1 Ld. Ray, 405.
    They insisted also that the record exhibited no error. In trespass, all are principals, and the damages cannot be apportioned. The question is not what wrong any one defendant has committed, but what the plaintiff has suffered. The verdict, therefore, by which damages were assessed against the two who pleaded, operates .equally upon all; they are all equally liable for the damages. This is declared to be the law in Wakeley v. Hart, 6 Binn. 319. The plaintiff, after sueing several for a joint trespass, proceeded to issue and trial against some of the defendants, without ruling the others to plead, and the Chief Justice, in giving his opinion, says, he might have laid them 'under a rule to plead, and taken judgment by default, and then they would have been interested in the verdict, because the same jury who tried the •issue against the other defendants, would have assessed joint damages against all. The propriety of this course is indicated by a number of other authorities. In Haydon v. Stiles, Brownlozv, 233, trespass was brought against three, one of whom confessed judgment by non sum informatus ; the other two pleaded not guilty, and went to trial; when the jury assessed 100 pounds damages against one, and 100 shillings against the other, and took no notice of the third. Judgment was entered against all three for 100 pounds. Trespass against two ; one appears and pleads, the other makes default, He shall be charged with the damages found against his companion. Bro. Ab. Damages, pi. 131. Trespass against two ; one appears, pleads non cul., is found guilty, and damages are assessed ; afterwards the other comes in, pleads, and is found guilty. The damages first assessed shall bind him. Cheyney’s case, 10 Co. 119. in Sir John Hay-don’s case, 11 Co. 6, where damages were assessed against one defendant, who pleaded to issue, and judgment was entered against the other by default, and a writ of inquiry awarded, it was held that the writ should not be executed, because damages cannot be twice enquired of. The award of a writ of inquiry, which is mentioned in some of the cases, cannot be necessary, because, as it is never executed, it would be an idle ceremony, to the advantage of no one. Trespass" against two ; one makes default, the other pleads to issue, and a venire issues ad triandum only ; the jury find for the plaintiff, and assess damages. This is good, and the one who made default shall be charged with these damages. 10 Vin. Error, c. 1. pi. 9. pa. 70. In all these cases the question was, whether the finding of the jury on the issue joined shall bind those who do not join issue ; and that it shall, they place beyond a doubt.
    
      C. J. lngersoll, for the plaintiff in error,
    denied that it was necessary that all the defendants should join in the writ of error, and said that a recurrence to the books would shew that the law had been held otherwise. In Bro. Ab. Joinder in Action, pi. 77, it is expressly laid down, that in trespass against two, they may join or sever in error, at election.. And in 9 Vin. 498. Error. K. pi. 39, the law is stated in the same way. In Jenk. 309. art. 7. c. 87, the action was trespass against three. Issue was joined with.one, against whom there was a verdict and judgment. The other two demurred, and a nolle prose-' qui was entered as to them. It was held that the plaintiff might have execution against the other, and it was said that if several judgments had been given, they could not join in error, and there ought to be several executions. Trespass against three ; plea, non cul., and issue as to one ; the other two demurred ; then a trial on the' issue, damages assessed, and judgment as to one, and a nolle prosequi as to the others. The one against whom there were damages, and a separate judgment, is not discharged, and the other two cannot join in the writ of error. Parker v. Lawrence, Hob. 78. Trespass against three ; plea non cul., by one, and verdict for him. Judgment by default, and writ of enquiry against the other two. These two may bring error. Carson v. Abbot, 1 Lev. 210. If there are five defendants, three of whom are acquitted, error must be by the two only who are convicted. Vaughan v. Lemngham, Cro. Jac. 138. Action against two, and one is outlawed^ the other alone may have error. Oliver v. Running, 1 Ld. Pay, 691. The conclusion from an examination of the adjudged law on this subject, is, that all direct authority is in favour of the position, that it is not necessary all the defendants should join in a writ of error. None of the cases cited in support of the opposite argument go so far, and all of them may easily be distinguished from the one under consideration. A very material mark of distinction is, that the judgment is not joint. Against four of the defendants, of whom the plaintiff in error is one, no damages are assessed, which places them on grounds altogether different from those against whom there was a verdict finding damages. [Here Mr. Ingersoll entered into a minute examination of the cases cited against him.] The writ of error issued in this case states, that the plaintiff in error, together with all the other defendants, (naming them,) was impleaded, &c, to the great damage of the plaintiff in error. As they are all mentioned in the writ, the Court may consider all as having brought the writ, and may call upon them to join or not in the prosecution of it. As to the procedure by summons and severance, it never had existence in Pennsylvania, and has nearly fallen into disuse in England.
    
    I contend that the execution isáued against Fotterall alone, a defendant under judgment by default for want of a plea, for damages not assessed against him, and without the award of an inquisition, is erroneous. No case ■can be adduced in support of it; and, on principle, the law is’ otherwise. Where some of the defendants appear and join issue, and others do not, the English rule, according to Hay-don’s case, is, first to try the issue joined, and then to award a writ of enquiry, though it is not necessary to execute it. This case is very open to criticism, and its authority has been questioned. Hill v. Goodchild, 5 Burr.279\. In Pennsylvania, the rule, according to Wakeley v. Hart, is, first to obtain judgment against the defaulters, and then, on the issue joined, to assess joint damages against all the defendants. In the present case the proceedings did not conform to either of these rules. They departed from the English rule, because the judgment by default preceded the trial of the issue, and because no writ of enquiry was awarded. They departed from the rule laid down in Wakeley v. Hart, because the joint liability of the defendants was severed by the premature judgment by default, and because no damages were assessed against the plaintiff in error. This is not a case of election of the best damages, because there are not several assessments of damages from which an election can be made. It is a case in which execution has issued against a defendant for damages assessed against other defendants, without an assessment of damages in any manner whatever., against him. The roll is, therefore, imperfect, and the execution is erroneous and unfounded. No authority can be found to support it, and it violates all the artificial principles of the action of trespass. The plaintiff below should have signed judgment by default, a sufficient time before he tried the issue joined, to have enabled him to issue a venire faciasjuratores tarn inquirendum, quam triandum, and then should have had joint damages assessed against all the defendants by the jury who tried the issue, notice having been given to the defaulters; or perhaps a writ of enquiry might have been awarded to find damages against the defaulters, on notice being given to them, to which they were certainly entitled. He cited, in the course of the argument, Sayre on Damages, 84. Austin v. Wilward, Cro. Eliz. 860. Mathews v. Cole, Cro. Jac. 384. Crane v. Humerston, Id. 118. Plain v, Warr, Cro. Car. 54. Sabin v. Long, 1 Wils, 30. Johns v. Dodsworth, Cro. Car. 192. Walsh v. Bishop, Id. 239.243. Rodney v. Stroud, Garth. 12. Smithson v. Garth, S Lev. 324. Lane v. Santeloe, 1 Str. 79. Onslow v. Orchard, Id. 422. Bull’s N. P. 20. Livingston v. Bishop 1 Johns. 290. Higby v. Williams, 16 Johns. 215. Jones v. Harris, 2 Str. 1108. Chapman v. House, Id. 1140. Lewis v. Smith 2 Serg. Si? Rawle, 142.
   The opinion of the Court was delivered by

Tilghman, C. J.

The counsel for the defendant in error, have moved to quash the writ because all the defendants below have not joined in it. It is an action of trespass, brought by John Floyd against the plaintiff in error, S. E. Fotterall, and five other persons. The plaintiff declared against all six of the defendants, and laid them under a rule to plead. Two of them pleaded to issue, upon which a verdict was found for the plaintiff, and damages assessed against those two only. Against the four others (of whom the plaintiff in error is one) judgment was entered by default for want of a plea; but no writ of enquiry was executed, nor does it appear by the record that any was prayed for. Under these circumstances the plaintiff took out a fi. fa. against all six defendants, and caused a levy to be made on the property of the plaintiff in error alone.

The counsel for the plaintiff in error has taken a distinction between those defendants who went to trial, and those against whom judgment was entered by default. He supposes that their cases are entirely different, and, therefore, they _ need not join in a writ of error. But if their cases were difperene it would not help the plaintiff in error against the objection made to his writ, because these four defendants against whom judgment was entered by default, stand exactly on the same footing, and are, therefore, within the principle contended for by the defendant in error, that is to say, that one defendant cannot maintain a writ of error alone. It comes at last, then, to the simple question, whether this principle be sound ? There is great reason why one defendant should not be permitted to take a writ of error alone, because, if he could, the plaintiff might be most unreasonably delayed. Every writ of error operating as a supercedeas, the plaintiff’s execution might be arrested by successive writs, sued out one after the other, until each defendant had taken his turn. So much for the reason of the thing; then, as to authority. We find it strong and express against several writs of error. This will be seen in Hacket v. Horne, Carth. 7, Walter v. Stokoe, 1 Ld. Ray, 71. Brewer v. Turner, 1 Str. 233. Cooper v. Ginger, reported in 1 Str. 606, and Ld. Ray, 1403. And it is to be-noted, that the principle decided in Hacket v. Horne is mentioned and acknowledged by Mr. Justice Yeates (great authority) in the case of Knox v. Costello, 3 Burr. 1789. In our own country, we find the jaw held in the same manner, in Andrews, &c. v. Bosworth, 3 Mass. Rep. 223. The only reported case in this State which bears at all upon the point, is Gallagher, &c. v. Jackson, 1 Serg. & Rawle, 492. That was ah appeal from a judgment given by a Justice of the Peace against two defendants. The appeal was to the Court of Common Pleas, where one of the defendants appeared and disavowed the appeal. It was decided by this Court, that the appearance and disavowal by one, amounted to a severance, and that the other alone might maintain the appeal; but, in that case, the appeal was entered in the name of both defendants, so that the question now before us did not occur. The counsel for the plaintiff in error has not weakened the force of these decisions by counter authority; he has shewn, that where one defendant is outlawed, the other may bring error alone. 1 Raym. 691. Oliver v. Hunning. The answer to that case is,' that there was no judgment against the person outlawed, nor did he remain a party to the suit. So where there are five defendants, of whom three are acquitted, and verdict and judgméntagainst the other two. It is evident that only fhoseagainst whom judgment passes, can have error. For the same reasons, where the plaintiff enters a nolle prósequi against one, and takes judgment against the others, he, against whom there was a nolle prosequi, shall not join in a writ of error. Only one of the plaintiff’s cases touches the point, and that is found in Brook’s Ab. title “ Joinder in Action.’’ pi. 77, and 9 Vin. 499. (Error K. pi. 39.) “ Trespass against two ; they may join in error, or sever, at election.” 14' H. 6. 9, is cited. If by this it is meant, that one of the defendants may either join in the writ of error, or sever (that is, withdraw and leave the other to prosecute alone), I agree to iti But if it is intended to say, that each may prosecute his writ of error separately, it cannot be law, because contradicted by many better authorities. It is said to be extremely hard that one defendant should be deprived of his writ of error, because the other refuses to join in it. But no such hardship exists. One defendant may sue out the writ in the name of all, and if the others refuse to join in the prosecution, they may be summoned to the Court of error, and severed, after which they never again can maintain a writ of error, but he who sued out the writ may go on alone. In this manner all hardship on the defendant, and all inconvenience to the plaintiff, are avoided.' I do not know that the process of summons and severance, has ever been used in this Court. ' We should probably proceed in a less formal and less expensive way, by layihg a rule on those persons named as plaintiffs in the writ of error and not appearing, either to appear and join in the prosecution, or submit to be severed.

The counsel in this case have entered into very elaborate arguments, as to the effect of the verdict on those defendants against whom judgment was entered by 'default. It is asserted on one side, and denied on the other, that execution might be issued against all six defendants, for the amount of the damages assessed against those who joined issue. Many cases were cited, not all quite consistent with each other, or with good sense. Upon that point, however, we give no opinion, because it is unnecessary. The question before us is, whether one defendant alone can prosecute a writ of error. We are of opinion that he cannot, and, therefore, that this writ should be quashed.

Writ of error quashed,  