Morrow v. People

Breese, J. If the obligee in a joint and several bond, shall elect to sue the obligors jointly, when he could sue them severally, he must take the consequences of his. election. He must, on trial, to sustain his action, prove a joint contract against all, and recover against all, or none, unless one of the parties interpose a defense personal to himself, as infancy or bankruptcy, in which case a nolle prosequi may be entered against such, and a judgment entered against the others. Such a defense does not go to the action of the writ, but is matter of personal discharge. Not so in this case. The plea of non est factum goes to the action of the writ, arid being found for the defendant, discharges the other defendants, for being sued as joint makers of the bond, and the fact being found that one of the parties did not make the bond, the others could not be joint makers as pleaded. One party being discharged, all are necessarily discharged. Morion v. Croghan, 20 Johns. 106; Hall v. Rochester et al., 3 Cowen, 374. This could have been avoided by suing the defendants separately. The judgment of the court below is reversed. Judgment reversed.