Minor v. The Mechanics' Bank of Alexandria. 1 P. practice, deferred until the cause was at issue as to all the parties, or the steps of the law taken to bring them into default,) does not appear upon the record to have been opposed, and that no motion was made in arrest of judgment, or for a postponement, until a trial of the issues upon the pleas of the principal might have been had. What would have been the proper proceedings under such circumstances, whether to try all the issues by the same jury, and have damages assessed at the same time against all the defendants; or whether there might have been several trials and several assessments of damages; and whether, if such several assessments had been made, and differed in amount, any, and what judgment, ought to have been entered, are points upon which the court does not think it necessary to give any opinion. The nature and effect of a nolle prosequi was not well defined or understood in early times; and the older authorities involve contradictory conclusions. In some cases it was considered in the nature of a retraxit, operating as a full release and discharge of the action, and, of course, as a bar to any future suit. In other cases it was held not to amount to a retraxit, but simply to an agreement not to proceed further in that suit, as to the particular person or cause of action to which it was applied. And this latter doctrine has been constantly adhered to in modern times, and constitutes the received law. In cases of tort against several defendants, though they all join in the same plea, and are found jointly guilty, yet the plaintiff may, after verdict, enter a nolle prosequi as to some of them, and take judgment against the rest. The reason is said to be, that the action is in its nature joint and several; and, as the [75] plaintiff might originally have commenced his suit against one only, and proceeded to judgment and execution against him alone, so he might, after verdict against several, elect to take his damages against either of them. A fortiori, the same doctrine applies where the defendants sever in their pleas. Indeed, in tort, as we shall hereafter see, it does not seem to have been denied that cases might exist, in which, if the defendants severed in their pleas, the plaintiff' might, after judgment against one, have entered a nolle prosequi as to the others. The doubt was, whether he could do so before judgment, which was finally settled in favor of the right; and in such cases, where several damages were assessed against the different defendants, the difficulty was afterwards cured, by entering a nolle prosequi as to all but one defendant. And in the same manner, a misjoinder of improper parties is sometimes aided. The authorities. on this subject will be found summed up with great accuracy in a note of Mr. Sergeant Williams, to the case of Salmons v. Smith, Minor v. The Mechanics' Bank of Alexandria. 1 P. 1 Saund. 207, note 2. In the same note, the learned editor adds: “if an action is brought upon any contract against several defendants, who join in their pleas, and a verdict is found against them, it is apprehended the plaintiff cannot enter a nolle prosequi against any of them; because the contract being joint, the plaintiff is compellable to bring his action against all the parties thereto; and he shall not, by entering a nolle prosequi, prevent the defendants against whom the recovery has been had, from calling upon the other defendants for a ratable contribution." So far as this reason goes, it is inapplicable to the present case; for the defendants are entitled not only to a ratable, but a full contribution over for the entire sum against the party in whose favor the nolle prosequi has been entered; and consequently the nolle prosequi does not touch their rights. It is observable, also, that the language is qualified by the words "who join in their pleas;" which are printed in italics, and may, therefore, fairly be presumed to have been inserted by the learned editor ex industria, with a view to point out an implied distinction between cases where there is a severance, and where there is a joinder in the pleas. If there be any such distinction it is favorable to the present case; for the plaintiffs severed in their pleas from their principal. The learned editor proceeds to state that, “if in such actions the defendants sever in their pleas, as where one pleads some plea which goes to his personal discharge, such as bankruptcy ne unques executor, and the like, not to the action of the writ, the plaintiff may enter a nolle prosequi as to him, and proceed against the others; for with respect to the bankruptcy, the statute * 76 ] of 10 Ann, c. 5, makes the *other defendant, who is not a bankrupt, liable for the whole debt; and, therefore, in that particular instance, the case is exactly the same as where an action is joint and several. So the plea of ne unques executor does not deny the cause of action; but only that he is one of the representatives of the testator. When the defendants sever in their pleas, with this limitation as to the extent of the pleas in action upon contracts, it is immaterial what is the form of the action; for the plaintiff may enter a nolle prosequi against any of them before verdict, and proceed against the rest.” [ The learned editor is fully borne out in the general position here stated, by the case of Noke et al. v. Ingham, Wilson, 89, to which he refers. The only question is, whether there is any such qualification upon it as that the plea should be one going exclusively in personal discharge and not to the merits. That is the point of real difficulty. The case in 1 Wilson, 89, was upon several promises made by the defendants as partners. One of them pleaded a former judgment; Minor v. The Mechanics' Bank of Alexandria. 1 P. and issue being taken upon the replication of nul tiel record, judgment was given against him, and a writ of inquiry of damages awarded and final judgment. The other defendant pleaded his bankruptcy, and upon this issue was joined; and afterwards the plaintiff entered a nolle prosequi as to him. Upon error brought, the principal objection was that the nolle prosequi, upon a joint contract of two, was a discharge of both. Mr. Chief Justice Lee said: "It is agreed on all hands that, in trespass against several, the plaintiff may enter a nolle prosequi as to one, and that will not discharge the other; and, therefore, I cannot see why it may not be done in this case; and I do not see how so proper an advantage can be taken upon the statute of Ann as to the bankrupt, as is now taken by the entry of this nolle prosequi." Wright, J., was of the same opinion, and so was Dennison, J.; and the latter added that "the plea of the bankrupt is not a plea to the action, but only a personal discharge; but that if one defendant was to plead a plea that was to go to the action of the writ, he thought it might then have a different consideration, but that this is not the case here. This case is exactly the same as when an action is joint and several; for the statute 10 Ann, c. 15, has made the partner not a bankrupt liable for the whole debt. This case is the very same as to this matter of entering a nolle prosequi, as if it had been trespass against several defendants." It is apparent, from this summary of the reasoning of the court, that the case turned upon the consideration that the contract, by the operation of the statute of Ann, was several as well as joint; and all the court concurred that, under such circumstances, the nolle prosequi would be good, being governed in the anal- [ *77 ] ogy to trespass, where the cause of action was several as well as joint. What was stated by Dennison, J., was not the exclusive ground of his particular opinion, but only a suggestion that the case might be, (not would be,) different upon a plea to the merits. Now the general reasoning comes very close to the case at bar; for here the bond is several as well as joint, and an action might have been maintained severally against the defendants; and what is not immaterial to be considered, all the parties were retained who had joined in their pleas, and between whom there existed a right of mutual contribution. Even in the case of bankruptcy the practice is, in England, to require all the joint contractors to be sued, as is proved by the case of Bovill v. Wood, 2 Maul. & Selw. 23, which makes it really less strong than a joint and several contract. The case of Moravia and another v. Hunter and Glass, 2 Maul. & Selw. 444, which has been relied on at the bar, was assumpsit against four defendants, two of whom were not served; D., one of on. Minor v. The Mechanics' Bank of Alexandria. 1 P. the other defendants, pleaded, 1. Non assumpsit. 2. A special plea of bankruptcy. 3. A general plea of bankruptcy, as to whom the plaintiff entered a nolle prosequi. The other defendant pleaded non assumpsit, and a verdict was found against him. The form of the nolle prosequi was, that the plaintiffs, inasmuch as they "cannot deny the several matters above pleaded, by the said D., freely here in court confess that they will not further prosecute their suit against him." It was moved, in arrest of judgment, that the nolle prosequi, so entered, had confessed the non assumpsit, as well as the other pleas; and therefore the other defendant was also discharged, and the distinction of Dennison, J., in Noke v. Ingham, 1 Wils. R. 89, was relied But the court held that the nolle prosequi was, in effect, only a confession; that, as far as regards D., he had a defence in the matters pleaded by him. This case does not, in terms, overrule the distinction, but it does establish that the court upheld the nolle prosequi, notwithstanding the pleadings did set up a plea to the merits, and not merely a personal discharge. The contract does not appear to have been joint and several; and to have arrived at its conclusion, the court must have considered that the confession of the plaintiffs, that they could not deny the several matters above pleaded, ought not to be deemed an admission of the truth of the pleas, except so far as to waive further proceedings in the suit, against the party who sets them up as a defence. This conforms to the definition given in the book, of a nolle prosequi. "It is," as Sergeant Williams states, 1 Saund. R. 207, n. 2, "a partial forbearance by the plain[ 78 ] tiff to proceed * any further, as to some of the defendants, or to part of the suit, but still he is at liberty to go on as to the rest." These are the only cases in England, which the researches of counsel have brought to our notice, bearing directly on the point before the court; and upon looking into the elementary treatises and books of practice, we have not been able to find any more general doctrine. Indeed, the latter confine themselves exclusively to the enunciation of the principles above stated, with the qualifications annexed to them in these authorities, as, see 1 Chit. Pl. 32, 33, 546; Com. Dig. Pl. X 2, 3, 5; 1 Tidd's Prac. 630; 2 Arch. Prac. 219, 220; 2 Lilly Prac. Reg. 280. In America, the cases have gone a step further. In Hartness v. Thompson, 5 John. R. 160, where an action was brought against three, upon a joint and several promissory note, and there was a joint plea of non assumpsit, and the infancy of the defendants, that was set up at the trial; it was held no ground for a nonsuit; but the plaintiff upon a verdict found in his favor against the other two defendants, might enter a nolle prosequi, as to the infant, and take judgment Minor v. The Mechanics' Bank of Alexandria. 1 P. upon the verdict against the others. In Woodward v. Newhall, 1 Pick. 500, in the supreme court of Massachusetts, upon a joint contract and suit against two persons, one of whom pleaded infancy, it was held that a nolle prosequi might be entered, as to the infant, and the suit prosecuted against the other defendant. These decisions were admitted to be against the cases of Chandler v. Parkes, 3 Esp. R. 76, and Jaffray v. Frebain, 5 Esp. R. 47, but the court thought the practice adopted by themselves was most convenient, and therefore gave it a judicial sanction. These cases were distinguishable from that in 1 Wils. R. 89, in the fact that the plea went not only in personal discharge, but proceeded upon a matter which established an original defect in the joint contract; whereas the plea of bankruptcy was for matter arising afterwards. The distinction was not thought to be sound. Indeed, the court seem to have considered the question rather as a matter of practice, to be decided upon convenience and policy, than as matter of principle. Hitherto, the question has been discussed as if the nolle prosequi had been entered before, when in fact it was entered after judgment against the defendants. The next inquiry is, whether this creates any substantial difference in the case. In Lover v. Salkeld, 2 Salk. 455, in trespass against two defendants, and verdict for the plaintiff, one being an infant, the plaintiff took judgment against the other, and entered a non pros. after the judgment against the infants, and took out execution upon the judgment; upon error brought, it was objected that a non pros. could not be entered after [79] judgment, for the judgment could not vary from the demand of the writ. It was argued on the other side that torts were several, and that a non pros. might be entered after as well as before judgment, and cases to this effect were cited. Lord Holt is reported to have said that he supposed there were interlocutory judgments, wherein it might well be; but a final judgment differed, for that being once wrong a subsequent entry would not set it right. The case was however adjourned, and nothing more appears of it. This case is not very accurately reported, and it may have been that the judgment was joint, and the nolle prosequi afterwards, which would remove the objection to its authority. The circumstance of its being adjourned, shows that the doctrine thrown out by Lord Holt was not deliberately considered by him, and was deemed not clear. truth, it is directly against the case of Parker v. Lawrence, decided in the exchequer chamber, and reported in Hobart's R. 70. That was trespass against three; one pleaded not guilty, and the other two a justification, to which the plaintiff replied, and there was a demurrer to the replication. Pending the demurrer the issue was tried, and In |