Winslow v. Herrick

Campbell J.: The suit below was brought on a replevin bond exe-cuted by Garret S. Swazie, as principal, and James R, Vleit, Jonathan H. Bescherer and Wilder Winslow, as, sureties. All of the sureties were served. The bond was joint and several. Vliet appeared and pleaded, and a default was entered against the other defendants served. When the case came, on for trial, plaintiff discontinued as against Swazie and "Vleit, and took judgment against Bescherer and Winslow, This is assigned as error. [381] We think the objection well taken. A party can not, upon a joint and several demand, treat the demand as a Joint obligation of less than all the debtors. It must be joint as to all, or several as to all: — 1 Pars. on Cont. 12, 13. This is a well settled and very familiar doctrine. The rule authorizing a plaintiff to discontinue against me or more defendants was not designed to change any legal rights, hut merely to enable a plaintiff who had sued more parties than he could recover against to amend his case by declaring against his real debtors. Whether a default obtained under the original declaration could stand so as to bind defendants under a new declaration, setting itp a contract with fewer parties, is a serious question which we aro not now called upon to decide. It is very clear that the declaration before ns does not set out a contract under which the plaintiffs in error were jointly ‘liable without Swazie and Vleit, and had they been sued jointly without their oo-obligors, they might have pleaded in abatement. Plaintiff could not, by the indirect process which he adopted, place them in any different position, or charge them in any way not justified by bis declaration. Some other questions were presented, hut the view we have taken renders it unnecessary to decide them. The judgment must be reversed, with costs. The other Justices concurred.