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. In 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 Minor v. The Mechanics' Bank of Alexandria. 1 P. damages and judgment given against him. After judgment, the plaintiff entered a nolle prosequi against the other two, and a writ of error was afterwards brought by all three; and it was alleged for error, that the nolle prosequi discharged all three. It was agreed by the court, (in conformity with the doctrine then prevailing,) that if the nolle prosequi had been before judgment, it would have discharged the whole action; and so it would, if the judgment had been against them all, and then the plaintiff had entered a nolle prosequi against the other two; for a nonsuit or release or other discharge of one discharges the rest. But here the action was at an end, as to the one, by the judgment against him, and no judgment was had against the others; so that they were divided from him, and are not subject to the damages found against him. It was adjudged that he was not discharged, and there was no error. This case is of great authority, having been deliberately decided by a very high court. It is cited as authority, by Chief Baron Comyns, in his Digest, Plead. X. 5, who also cites Plead. X. 3, the case in Salkeld, as one in which there was a final judgment against all the defendants. The reason of the thing would seem entirely in favor of the judgment in Hobart, and it stands supported by a much earlier case, in the year books, 14 Edw. IV.; Brooks, abridg. Tresp. pl. 331. If the plaintiff may, in any case, recover a judgment against one on a joint action against two, who sever in their pleadings, it is wholly immaterial to the regularity and effect of that judgment, in what stage of the cause the [ * 80 ] suit has ceased to be * prosecuted against the other. It is sufficient that in the event the judgment is consistent with the general principles of the action. If a nolle prosequi may be entered after verdict, and before judgment, without discharging the other party, there is no good reason why it may not be done after judgment, when there has been no proceeding which binds the plaintiff to consummate a judgment against the party whom he wishes to dismiss. In each case the judgment upon the whole record is consistent with the writ. The result of this examination into authorities is, that there is no decision exactly in point to the present case; that there is no distinction between entry of a nolle prosequi before and the entry after judgment, applicable to the present facts. That the authorities, and particularly the American, proceed upon the ground that the question is matter of practice, to be decided upon considerations of policy and convenience, rather than matter of absolute principle; and that therefore this court is left at full liberty to entertain such a decision as its own notions of general convenience and legal analogies would lead it to adopt. We are of opinion that where the defendants sever in Minor v. The Mechanics' Bank of Alexandria. 1 P their pleadings, a nolle prosequi ought to be allowed. It is a practice which violates no rules of pleading, and will generally subserve the public convenience. In the administration of justice, matter of form not absolutely subjected to authority may well yield to the substantial purposes of justice. JOHNSON, J., dissenting. The facts appearing upon the records, from the count, pleas, and replications, are these: This action was on a bond given for the faithful discharge of the office of the cashier, by Philip H. Minor. It was joint and several. The defendants craved over jointly, and pleaded performance, to which the plaintiff replied. They afterwards had leave to withdraw the joint pleas; and the four securities jointly filed various pleas, to which plaintiff replied; and issue being taken, proceeded to trial, and obtained this verdict. After the verdict, the principal to the bond was ruled to plead, and he then files a variety of pleas, similar in effect to those pleaded by the securities. The court then gave judgment upon the verdict, and the plaintiff's attorney enters this nolle prosequi; and judgment is given for the principal, on the bond. That the plaintiffs take nothing by their bill, but, for their false clamor, be in mercy, and that the defendant go thereof, without day, and receive his costs. 81] It was insisted by the defendants that, in this state of the pleadings and record, the plaintiffs ought not to have had judgment below; that there is error, and the judgment should [ be reversed. What further order this court would be bound to render upon a reversal, it is not material to inquire. I readily assent to the doctrine that, in adjudicating upon questions of practice, a court should have regard to public convenience; but it would be extending this principle to the violation of its own spirit and intent, if carried to the extent of overturning known established rules, both of law and practice. To this extent, it appears to me, the present decision goes; and that this judgment cannot be affirmed without shaking as well estab lished principles as adjudged cases, and opening a door to incon veniences which must soon compel this court to retrace its steps. The judgment, as it stands below, is against four out of five joint and several co-obligors; and the obligor omitted, or rather who has judgment in his favor, is the cashier, for whose good conduct in office the other three became bound. Now, this judgment is either a bar to a future suit against the principal, or it is not. If a bar, then the record exhibits the inconsistent case of four being made liable for one, who was not liable himself. And if it is not a bar, |