Palmer v. Severance , 10 Ala. 346 ( 1846 )

GOLDTHWAITE, J.

The construction hitherto given to the statute, which makes joint obligations, &c., joint and several, [Digest, 323, § 61,] has been, that it does not warrant the discontinuance of the suit, when commenced against several, except as to those who are not served with process; [Keebles v. Ford, 5 Ala. Rep. 183; Saddler v. Houston, 5 S. & P. 20§; Adkins v. Allen, 1 Stewart, 130,] and that if one is discharged by verdict, T5n a defence which does not arise subsequent to the contract, or is persenal to the defendant insisting upon it, it will prevent, or be sufficient cause to arrest the judgment against the others. [Ivy v. Gamble, 7 Porter, 545; Turner v. Lazarus, 6 Ala. Rep. 875.] But although the arrest of the judgment is the consequence when one is thus discharged, it does not follow that when one only succeeds in making good the common defence, or that is obviated as to the other, that a general verdict shall be returned for both defendants. The effect of a general verdict would be to bar the plaintiff afterwards of his several action against the defendant really liable to him, which is entirely different from the consequences which follow an arrest of judgment. We think the charge, in this view, was erroneous, and the court should have permitted a verdict according to the proof, leaving it afterwards to the parties to move for judgment, or to annul it as they should be advised.

Judgment of non-suit reversed, and cause remanded.