Lampkin v. Chisom ( 1859 )

By the Court.

1. The common-law rule that where a joint contract is the subject of an action, the recovery must be against all or neither of the defendants, has been modified by the 371st section of the code of civil procedure, so as to authorize judgment to be rendered “for or against one or more of several defendants,” where it turns out upon the trial that only one or more of several defendants in such joint action is liable, without subjecting the plaintiff to the necessity of bringing a new action against such defendant

*or defendants. Brumskill v. James, 1 Kern. 294; Marquat v. Marquat, 2 Kern. 336.

2. Where, in a joint action against two or more defendants, the verdict is in favor of one or more of them and against others, and there be any doubt as to the effect of the judgment, to preclude .another action in respect of the same cause, against all or either ■of the defendants, it would be proper for the court, by amendment of the pleadings or an entry upon the record, to save the parties the benefit of the judgment as a bar.

Motion overruled.