Weist v. Jacoby

The opinion of the court was dfelivered, by Thompson, C. J. The single question in this case is, whether the plaintiff may legally have judgment against two of the defendants, the third having pleaded coverture, and having been discharged by a finding of the arbitrators in her favor on this plea, and by an entry of a nolle prosequi by leave of court, as to her after appeal. The court below thought he could, and entered judgment in accordance with that opinion on the case stated. That a plaintiff may enter a nolle prosequi as to a defendant 'who pleads matters personal to him or herself entitling to a discharge, and thus discharge such defendant as a party from the record, is well settled. Amongst such matters are the pleas of bankruptcy, infancy, coverture and the like. For this see Beidman v. Vanderslice, 2 Rawle 334; 1 William’s Sanders 207, note (a); 1 Greenleaf Ev. § 556, and Swanzey v. Parker, 14 Wright 441. The action here not being for necessaries, the plea of coverture by Mrs. Woods, was within the rule. The complaint that the nolle prosequi prevented Weist, a co112 defendant, from showing that Mrs. Woods was liable in the action with him, because the note was in fact for necessaries, is novel. Had it been so, he could not have turned plaintiff and prosecuted her in that action. He might, however, have shown it, I apprehend, to establish a case wherein the plea would not have entitled the defendant to a discharge, and then have claimed, as a consequence, that the nolle prosequi discharging her discharged the other defendants, the suit being joint. If the fact be so, he may still, after payment of the judgment, call on her to repay him money paid for hei use, if he was her surety in the note, and it was for necessaries. This, however, is rather outside of the question presented for adjudication here. As to it, we see no error in the record, and the judgment is affirmed.