
    John Tappan versus Matthias Bruen.
    
      Practice. An appeal lies to this Court not only from a judgment of the Common Pleas on which an execution may issue, but from any final determination of an action of that Court, whether it be by order or judgment.
    Where several defendants are sued on a joint contract, and some of them are out of the jurisdiction of the commonwealth, having no usual place of abode within the state, at wliich a summons might be left, the plaintiff may cause his writ to be served on those within the state, and proceed only against them for the breach of contract by all. — This rule extends also to actions against executors and administrators.
    This was assumpsit by the plaintiff against Matthias Bruen and James Bruen, both of New York, in the county and state of New York. The writ commanded the officer to attach their goods or estate, and for want thereof to take their bodies, if they [ * 194 ] might be found in his * precinct. The officer returned that he had arrested the body of Matthias Bruen, and had taken bail; but James Bruen not having been resident in the state within three years, and having no property in it, he had made no further service of the writ.
    The plaintiff entered his action at the Court of Common Pleas, to proceed against Matthias, upon whom the writ was served ; but on his motion, that Court dismissed the action, because the writ was not served on James. From this order of dismission the plaintiff appealed, and the same Matthias, by Parker, his attorney, now moved this Court that the action should here be dismissed for the same cause, the service not being within the provisions of the statute of 1797, c. 50., “ relating to suits against defendants out of the state,” &c.
    
      Charming, for the plaintiff.
    No provision is made by that or any other statute for the service of a writ upon a defendant who is not resident, and has no property within the state. If this service is insufficient, an action can never be sustained upon a joint con trac i, unless the debtors are all resident or have estate within the jurisdiction of the Court, whence the most manifest inconvenience and injustice would follow. In England, the remedy by outlawry is plain and sufficient for all the purposes of justice . But no process of outlawry lies in' this government, but upon criminal prosecutions.
    
      
      
        Sheppard vs. Baillie, 6 D. & E. 327. — Symonds vs. Parmineon, 1 W. Black. 20.
    
   Parsons, C. J.

No exception has been taken by the appellee to the right of the plaintiff to appeal from the order of the Court below for dismissing the action. But the point has had the consideration of the Court as a matter of practice.

The appellate jurisdiction of this Court from actions determined in the Common Pleas is given by the statute of 1782, c. 11. The second section provides that any party aggrieved at the judgment of the Common Pleas upon any action, may [ * 195 ] appeal therefrom to the next Supreme Judicial Court, and no execution shall be issued by the Common Pleas upon the judgment appealed from. The right here given has always been confined to an appeal from the final decisions of the Common Pleas, and not extended to any interlocutory judgment.

Accordingly, the statute of 1784, c. 27., § 8., gave an appeal from judgments of respondeos ouster, on a plea in abatement, and also from a judgment for the plaintiff upon demurrer, before the Court had proceeded to inquire of, and to assess the damages. The statute of 1785, c. 47., gave an appeal in actions of account from the judgment quad computet. And an appeal in partition from the judgment quad partitio fiat is given by the statute of 1786, c. 53.

In all other cases an appeal lies only from the final decision of the Common Pleas. Hence it has been doubted, as the appeal in terms has been given to the party aggrieved at the judgment of the Common Pleas, whether an appeal lies from an order of that Court, finally determining the action there. If this provision is to extend only to judgments technically considered, the party would be without remedy, if he had no day in Court given him by an order to arrest the judgment, or to stay all proceedings in any action, wnich certainly could not be the intent of the statute.

We had occasion to consider this point, as it related to an order to arrest judgment after verdict, in the case of Bemis vs. Faxon . In that case we sustained an appeal from an order to arrest the judgment, to prevent the Common Pleas from ousting this Court from its appellate jurisdiction. The same reason applies to an appeal from an order to stay all proceedings in any action. We are therefore satisfied that the provision of the 2d section of the statute of 1782, c. 11., is not to be confined to a judgment, on which an [ * 196 ] execution may issue, but that it extends * to any final determination of any action in the Common Pleas, whether it be by order or judgment.

The motion before the Court is to stay all proceedings, because the service of the writ is defective.

It has been an immemorial practice, in the service of a writ sued on contract against two or more defendants, if some of the defendants are without the jurisdiction of. the commonwealth, so that their bodies cannot be arrested, and having no usual place of abode with-o in the state, at which summons may be left, to cause the writ to be served on the defendants within the state, and to proceed only against them for the breach of the contract by all the defendants. The defendants, upon whom the service is made, plead that they, with the others, did not make the promise, if the action be on assumpsit, and so mutatis mutandis, if the action be debt; and if the plaintiff recover judgment, it is entered against the defendants only who were served with process.

From the frequency of the circumstance of joint debtors having been found to live in different states, this practice is exceedingly convenient; and no injustice is done, because if judgment had been recovered against all the debtors, the plaintiff might have satisfied it out of the defendants, against whom it is in fact recovered. This practice originated from necessity, as no mode of service is provided by our laws upon a debtor without the state, who has no place of abode or property within it. It has also been extended to actions against executors or administrators, living in different states, as the judgment is against the estate of the deceased.

We cannot set aside this practice, and it must govern us in this case, unless it is controlled by some of the provisions of the statute of 1797, c. 50. The sixth section'only, if any, can apply to this case. It is there enacted, that when there are two or more joint debtors, and one or more of them are without the state, having property within it, but not any tenant, agent, trustee or attorney, * this property may be attached, and a sum- [*197] mans being left with a joint debtor within the state, shall be a legal service on the other. This section directs the service of the writ, where the plaintiff would proceed against all the debtors, and would attach the estate of those absent; but it cannot apply to the present case, where the absent debtor had no estate to be attac’ ed. The ancient practice must therefore prevail, and the plaintiff may proceed and recover against the defendant, who has been served with the process.

By the Court. The motion is overruled, and the appeal is susained . 
      
       2 Mass. R. 141.
     
      
      
        Call vs. Hagyer, 8 Mass. 423. — Parker vs. Danforth, 16 Mass. 299
     