Fuller vs. Van Schaick, Felthousen, and Ouderkirk, 18 Wend. 288

By the Court, Bronson, J. If the defendant Van Schaick intended to rely on the supposed irregularity, he should not have appeared on the trial, but should have suffered the plaintiff to take an inquest. After taking his chance before the jury for a verdict, he now insists that the action was out of court, and that there was in fact nothing to try.

It is unnecessary, however, to dispose of the motion on that ground. [549] The objection to the plaintiff's proceedings is, that this is an action upon a joint contract, and that by the discontinuance or nolle prosequi as to the two endorsers, the whole action is out of court. There is po doubt that such would, in general, be the consequence in actions arising ex contractu; though it is otherwise in actions for . torts.

And in actions upon contract, if one of several defendants plead some, matter which goes merely to his personal discharge, the plaintiff may enter a nolle prosequi as to him, and continue the action against the others. The statute, Session of 1832, p. 489, and Session of 1835, p. 248, has introduced a new rule, and allowed the plaintiff to include all the parties to a bill or note in one action. The action is in form a joint one, though it is founded upon several and distinct liabilities. A count may be so framed on the bill or note as to show the particular contract of each party, drawer or maker, and endorser.

But the third

section expressly authorizes the plaintiff to declare on the money counts, serving a copy of the bill or note with the declaration. The money counts in form state a joint contract, and the bill or note could not be given in evidence under those counts, if the statute had not expressly authorized it. The statute does not turn distinct liabilities into a joint contract, but gives a joint action to enforce the several liabilities of different parties.

This case then does not come Within the reason of the rule on which the defendant relies, and a nolle prosequi as to one class of defendants, as endorsers, will not discontinue the action as to another class, as drawers or makers. It is like an action arising ex delicto where the defendants are liable jointly and severally. It is insisted that the act requires the plaintiff, if he sue in that form, to proceed against all the defendants as joint contractors. The language of the first

section is, that “ it shall be lawful” for the plaintiff to include all the parties to the bill or note in one action, “ and to proceed to judgment and execution in the same manner as though all the defendants were joint contractors.” The object of the

section was to give the plaintiff authority to proceed in that manner, not to render it .compulsory on him to do so. The fourth

section expressly provides that “judgment may be rendered for the plaintiff against some one or more of the defendants ; and also in favor of some one or more of the defendants against the plaintiff.” The second

section of the act of 1835 carries this severance of the action still further. This is not like an action against several persons bound by a joint and several contract. In that case, if the plaintiff bring a joint action against all the parties, he must recover against all or none. For the purposes of that action he has elected to consider it a joint contract, and must abide the consequences. But the drawer and endorser of a bill are hot bound by a joint contract—their undertak ings are not only several but dissimilar.

Allowing the plaintiff in an action against the makers and endorsers to discontir as to one class of defendants, is in accordance with the general policy of' statute; and I do not perceive that it can work any injustice. The plaintiff , of course must pay costs to the parties discharged, and those who remain ' suffer no injury. What suggestions the plaintiff should make in such a case, and how the record should be framed, the court is not now cal]' to decide. The motion must be denied.