
    [Lancaster,
    May 17, 1824.]
    HOSTETTER and others against KAUFMAN.
    IN ERROR.
    If the plaintiff, after having entered an appeal from an award of arbitrators, suffer a voluntary nonsuit, the award becomes an absolute judgment.
    In an action on a joint and several bond, against one of the co-obligors, in which the defendant relied upon an award of arbitrators, in a suit brought on the same bond, against the administrators of a deceased co-obligor, finding that the plaintiffs hail no cause of action, from wnicli award an appeal was entered, but the. plaintiffs, on the trial of the appeal, suffered a voluntary nonsuit: held, that the plaintiffs could not show, that the nonsuit was suffered bysurpri.se, in consequence of a witness for the defendant in that suit, having sworn to an act, which if true, was fatal to their cae e of action, but who, it had since been discovered, was perjured.
    If a matter which ought properly to have been pleaded since the last continuance, be given in evidence, without objection, it is not error that it was not pleaded.
    It is a general rule, that a plea puis darrein continuance must be put in before a continuance has intervened; but the court may, for special reasons, permit it to be put in nunc pro tunc, although a continuance has intervened.
    An award of arbitrators, in full force, in favour of the defendant, in a suit on a joint and several bond, against one of the co-obligors, is a bar to a subsequent action on the same bond, against another co-obligor.
    The plaintiffs in error brought an action of debt in the District Court for the city and county of Lancaster, against the defendant in error, on a joint and several bond, conditioned for the payment of twenty thousand four hundred and seventy dollars, twelve and a half cents, given to them by Benjamin Kaufman, the defendant, Christian Slouffer, jun., and Christopher Brenner, deceased. The defendant pleaded payment, with leave to give the special matter in evidence. The jury, before whom the cause was tried, returned a special verdict; by which they found in substance, that the plaintiffs had brought a suit in the Court of Common Pleas to JlugusL Term, 1816, on the same bond, against the administrators of Christopher Brenner, deceased. This suit was arbitrated, and the arbitrators awarded, that the plaintiffs had no cause of action. From this award the plaintiffs entered an appeal. The cause was afterwards fried, when the plaintiffs voluntarily suffered a nonsuit. This took place after the institution of the present suit; but the defendant did not plead the former judgment. That was suggested by the court to be the proper course, and a plea was accordingly framed; but withdrawn in consequence of an agreement at bar, that the record should be given in evidence, in the same manner as if it were pleaded. The plaintiffs proposed to prove on the trial, that the nonsuit in the former action was suffered, in consequence of one of the defendant’s witnesses having sworn to a fact, which, if true, was fatal to their cause of action; and that it had since been discovered, that the witness was perjured; which the plaintiffs offered also to prove. The court overruled the evidence, and sealed a bill of exceptions.
    The opinion of the court below being, that, in consequence of the nonsuit, the award remained in full force, and was a bar to the present action, the plaintiffs excepted to their opinion, and removed' the record to this court by writ of error.
   The opinion of the court was delivered by

Tilghman, C. J.

This is an action of debt, brought by the plaintiffs below, (who are plaintiffs in error,) against Benjamin Kaufman, (the defendant in error,) on a joint and several bond for twenty thousand four hundred and’seventy dollars, twelve and a half cents, given by the said Christopher Brenner, Christian Stouffer, jun., and Christopher Brenner, deceased, to the plaintiffs. The jury found a special verdict; by which it appears, that an action was brought on the same bond by the plaintiffs, against the .administrators of Christopher Brenner, which was submitted to arbitrators, who, having heard the parties and their counsel, made an award, that the plaintiffs had no cause of action. The plaintiffs appealed from this award, to the Court of Common Pleas; and, the cause having come to trial, the plaintiffs suffered a voluntary nonsuit. The opinion of the court below, on this special verdict was, that in consequence of the nonsuit," the award remained in force, and the plaintiffs in the present action were barred by xt. Before the accuracy of this decision is considered, several preliminary objections are to be removed.

1. The counsel for the plaintiffs, offered to give in evidence, that the nonsuit was suffered in consequence of surprise. That one of the defendant’s witnesses swore to a fact, which, if true, was fatal to the plaintiffs’, action, and therefore the nonsuit was suffered. But it had been since discovered, that the witness was perjured; as the plaintiff offered also to prove. This evidence was rejected by the court; on which the plaintiffs’ counsel took a bill of exceptions.— I cannot perceive on what principle, such, evidence could have been admitted. The nonsuit was voluntary, and produced by no ai'tifice or act of the defendant. As long as it remained of l’ecord, unreversed, it was of force, and no other court could set it aside in a collatei’al way. The plaintiffs might have applied to the Court of Common Pleas, who, a proper case being made out, had powei' to take off the nonsuit. There was no other way of getting rid of it. It is not like the case of a judgment entered by fraud, in which the parties to the suit were parties to the fraud; such as a judgment entered against an executor by his consent, in order to cover the assets, where no debt was, in fact, due from the testator. There, the judgment being pleaded against another creditor, in a subsequent action, he may reply that it was fraudulent; because it is the person guilty of fraud, who attempts to avail himself, of the judgment. No such matter exists in the present case, nor can we say, ‘S^tkat the defendant in the appeal would not have obtained a verdict on the merits of his defence, (independently of the alleged perjury,) if the nonsuit had not been suffered. There was no error, therefore, in the rejection of the evidence.

2. In the second place, it is objected that no regard should be paid to that part of the special verdict, which finds the record of the action brought by the plaintiffs against Brenner’s administrators ; because that record was not pleaded by the defendant, and because it could not have been pleaded; the matter contained in it having happened pending this suit, and a continuance having intervened before it was mentioned. It appears, however, that the record must have been given in evidence, because the jury have found it; and it does not appear that any exception was taken to the evidence. It must be presumed, therefore, that the evidence was given with the plaintiffs’ consent, and indeed the president of the court, in the opinion which he delivered, expressly says that it was so. The issue was joined on the plea of payment, with leave to give the special matters in evidence; and although this evidence might not have been admissible on that issue, without consent, yet with consent it certainly was. In a special verdict, the jury find facts, and not the evidence on which their finding is grounded. Here they have found the record, and it not appearing that any exception was taken to the evidence which induced that finding, all is right. As to the time when a plea puis darrein continuance is to be put in, it is true, in general, it must be before a continuance has intervened; but this is not universally true. The court may, for special reasons, permit that plea to be entered nunc pro tunc, although a continuance has intervened. It was so held in the case of Morgan v. Dyer, &c. 9 Johns. 255. 10 Johns. 161, and in Wilson v. Hamilton, 4 Serg. & Rawle, 238.

We come now to the consideration of the main question: What is the effect of the record in the plaintiffs’ action against Brenner’s administrators? According to our act of assembly, the award was to be considered as a judgment, subject to be reversed on an appeal. .The plaintiff did appeal; and, on the trial of his cause, suffered a voluntary non pros. This was a relinquishment of the appeal; and, consequently, the judgment was in full force. That is a point settled by two decisions of this court: King v. Sloan, 1 Serg. & Rawle, 77, and Moore v. Hamilton, not yet reported. The only remaining question then is, whether the judgment for the defendant in the action against Brenner’s administrators, is a bar to this suit. The award was, that the plaintiffs had no cause of action. It must be taken for a judgment, after hearing the case on its merits. If the award had been on a plea of infancy, or other personal matter, which might have discharged Brenner, without affecting the other obligors, the plaintiffs should' have shown it. Taking it then for a judgment on the merits, how can the other obligors be prevented from taking advantage of it ? The rule is, that in a personal action, the discharge of one is the discharge of all.' Co. Liit. 125, b. The obligation being both joint and several, makes no difference. If the obligee release one of two joint and several obligors, the other may plead the release, in bar. Co. Litt. 232, a. 2 Saund. 48, a. note 1.

The law is the same, in case of a release in law; as where a feme obligee marries one of the obligors, or an obligee appoints one of the obligors his executor. Now, no release can be more efficacious, than a discharge by judgment of a court of record. What would be the consequence, if the defendant could be charged in the present action? Could he demand contribution from Brenner’s administrators? If he could not, it would be inconsistent with the nature of a joint and several obligation; and, if he could, it woujd be taking from Brenner’s administrators, in part, the benefit of their judgment. I can see nothing which should take this case out of the general rule, that a discharge of one is a discharge of all. I am therefore of opinion, that the, judgment should be affirmed.

Judgment affirmed.  