Spencer v. Fish ex rel. Smith

Per Curiam. The writ of error in this case should have been sued out in the name of both the defendants below; and a severance effected afterwards under the rules. [228] But as the writ actually issued identifies the judgment, it would be amendable, and as the defendant who was not joined has now filed his election not to unite in prosecuting the writ, the substantial purpose of the proceedings under the rules has been accomplished, and instead of dismissing the writ, we think it competent, and proper that an order be entered that Spencer be at liberty to proceed in the case separately. It will be ordered accordingly. Submitted January 20. Decided January 21.