Wade v. Robinson , 1 Stew. 423 ( 1828 )

JUDGE WHITE

delivered the opinion of the Court,

'. It is mainly relied on as an assignment of error, that the’statute of 1818, ^a authorizing discontinuances against ‘any, one or more joint defendants on whom a writ may not have been executed, does not include warrants ex-,£>resslyand it is urged that they are not writs ; that the ^provisions of the statute do not reach this case, and therefore that the discontinuance entered in the Circuit Court was error. We are of a different opinion ; we think that a warrant is, at least to the purpose of this question, a writ, and of course included within the true meaning of said statute, which was intended to extend to all process by which defendants are usually brought to answer civil complaints on joint notes, bonds, &c.

The next error urged by the plaintiffs’ counsel is this: that notwithstanding our statute makes all joint notes, bonds, &c. joint and several, yet as it is a principle of the common law, that where there are three or more obli-gors to a joint and several bond, one must be sued or all; so in this case the suit could not progress to judgement without error against but two only of the persons bound in the note. This would be correct reasoning, and a correct conclusion, but for the circumstance that the common law is totally altered in this respect by the provisions of the statute of 1818. ^a The first section of this statute, after declaring all joint bonds, notes, &c. to be joint and several, expressly authorizes suit to be commenced and prosecuted to judgement against any one or more obli-gors, &c. in such joint bonds, notes, &c. And the second section of the same act provides that when a writ is sued out against any two or more joint and several obligors, &c. it shall be lawful for the plaintiff or his attorney, at any time after the return of said writ, or alias writ, to discontinue his action against any one or more of the defendants on whom such writ may not have been executed. This statute then decides the case, and shews that the errors relied on cannot be sustained. The judgement must therefore be affirmed. And in this opinion the whole Court concur. ¡,

Judge Taylor not sitting.

a sJ^w-Aia^a,

a «LawsAla.448.