
    Thompson v. Saffold et al.
    1. In an action against two on a contract, (notbeing witbintlie statute of 1818,) a discontinuance as to one who is returned “not found,” is adis~ continuance as to all.
    
      % A certificate of a purchase of a lot of land, entitiiugthe purchaser to a title on payment of the purchase money is notwithin said statute.
    3. Such discontinuance is good cause of demurrer.
    This was an action of trespass on the case commenced by A. M. B. Thompson, in Dallas Circuit Court, against James Saffold -and Reuben Saffold, as survivors of P. Harrison, J. Cox, L. Wood, J. Phillips, and D. Files, deceased, who composed the “Portland Town Company,” to recover damages of them, for failing to make title to a lot. The writ was executed on James Saffold; and as to Reuben Saffold, it was returned “ not found.” The plaintiff filed his declaration against James Saffold, (discontinuing bis action ás to Reuben Saffold,) stating that the persons above named, under the name of the “ Portland Town Company,” on the 23d of August, 1819, by John Cox, their treasurer, made and delivered to one Frederick Sheffield, a certificate, by which it was certified that said Sheffield had purchased of said company a lot in Portland, for $36; one fourth of which was paid down according to contract, and that if the remaining three fourths were paid at certain specified periods to one of the proprietors of said land, that then, said Sheffield, his assigns or legal representatives, should be entitled to receive from the proprietors a deed in fee simple for the lot, under the penalty of $73. The plaintiff avers that the payments were made according to contract, and that afterwards, on the 8th of July, 1820, Sheffield assigned the certificate to one Bradly Dear, and that he afterwards, in 1822, assigned it to the plaintiff. The declaration further states, tbatthe plaintiffputimprovements on the lot to the amount of $3,000, and that the defendants had no title deed to the land, but that the title to it was in another person, and that that they were wholly unable to give a title to the plaintiff for the lot; whereby he has sustained great damages, &c. To this declaration, the defendant demurred, and at October term, 1828, judgment was thereupon given for the defendant. This judgment on the de« murrer is assigned for error.
    R. G. Gordon, for the plaintiff in error.
    IT. G. Perry, for the defendant.
   By JUDGE WHITE.

The design of the action was to recover damages for failing to make title to a lot in the town of Portland. The process was sued out against two defendants, but was executed on but one, and the suit was-discontinued as to the other, and to the declaration against one only, a demurrer was filed. It will be perceived that the foundation oí the action was the certificate, and as the plaintiff proceeded against two defendants in contract, he was, according to the well settled doctrine, bound to have them both in Court before he could file his declaration, unless the defendant not found had been pursued to a pluries, or the instrument sued on was within the provisions of the statute of the 7th of February, 1818, authorizing discontinuances in certain cases. This statute provides only for suits commenced on bonds, covenants, bills, promissory notes and judgments of Courts of record in other States or Territories. It is obvious that the certificate referred to, is neither a bond, bill, nor promissory note; but a mere written statement of a purchase, and its terms signed by an agent. The declaration then,- by shewing on its face a discontinuance against'one of the defendants, in effect sjlewe¿ that the entire action was discontinued. The demurrer was therefore well sustained.

Judgment affirmed.

Judges Safford and Crenshaw not sitting.  