Ivey v. Gamble

GOLDTHWAITE, J. — The only question presented is, whether any judgment ought to have been rendered against Ivey, as the pleadings are joint, and the verdict is against him alone. The rule mentioned by Mr. Williams, in his note to Saunders, (2 Saund. 207, note 2) that a plaintiff can not discharge his action against any one defendant who has [547] been sued on a joint contract, though unquestionable in England, has not been adopted in this country, to the extent laid down in the note. Indeed, there is a manifest injustice, in visiting on the plaintiff, as a fault, what is only his misfortune, when he has contracted with individuals who have not the capacity to bind themselves,, as in the case of infancy and coverture. Yet, even in such cases, it has been decided in England, that the plaintiff can not discontinue against the infant or feme covert, and proceed against the other defendants, but he is forced to discontinue against all, and commence a new action against those liable to be sued. A more reasonable rule has been adopted in New York, where the plaintiff is permitted to discontinue against a co-defendant, who pleads any matter which shows an inability to make the contract declared on, and he proceeds against the other defendants.—(Hartness v Thomson & wife-5 Johns. 160; Andrus v Waring; 20 ib. 160 ; Whitbeck vs. Cook and Wife—15 ib. 483.) The rule, however, never extended to those cases where one or more defendants are discharged by matter subsequent to the contract, as in the case of bankruptcy ; which, although a discharge to the action, will not preclude the plaintiff from entering a discharge as to the bankrupt, and proceeding against the other defendants.—(2 Saund. 207, note 2; 1 Wils. 90.) So also, in the case of,executors, one may be discharged on the plea of plene administravit, and a verdict be had against the others. It is difficult to perceive any sound distinction between a discharge under a statute of bankruptcy, and a dis [548] charge by reason of the statute of limitations, so far as the rules of pleading are involved: both are matters which arise subsequent to the contract — both are personal in their character, and can not enure' to the benefit of other parties. Nor can the fact, of the plea and replication being joint, in our opinion, make any difference. It is the verdict which establishes the truth of the pleadings; and as the matter here determined by the verdict, in favor of McBride, can not, in any way, operate to the benefit of Ivey, the judgment was correctly given on it. Let the judgment be affirmed.