A plaintiff who has declared jointly against two defendants as
being in custody when in fact only one of the defendants was taken
on the
capias cannot abate his own action against the
party not taken unless authorized so as to do by the return of the
process against that party.
If the marshal of Virginia return that the defendant is no
inhabitant of the District of Virginia, the suit shall abate as to
such defendant.
The general rule certainly is that if two or more persons are
sued in a joint action, the plaintiff cannot proceed to obtain a
judgment against one alone, but must wait until the others have
been served with process or until the other defendant have been
proceeded against as far as the law authorizes for the purpose of
forcing an appearance.
The transcript of the record which was sent up, began by stating
that
"Heretofore to-wit, at rules held in the clerk's office of the
said court in the month of December in the year 1807, Andrew Petit
and Andrew Bayard, by Philip N. Nicholas, Esq., their attorney
appeared and filed their certain bill against Seth Barton and
Thomas Fisher, which bill is in the following words, to-wit:"
" United States, Fifth Circuit, District of Virginia, to-wit,
Andrew Petit and Andrew Bayard, citizens and inhabitants of the
State of Pennsylvania, merchants and partners, trading under the
firm of Petit & Bayard, plaintiffs, complain of Seth Barton and
Thomas Fisher, citizens and inhabitants of the State of Virginia,
late merchants and partners trading under the firm of Barton &
Fisher, defendants in custody, of a plea that the said defendants
render unto the said plaintiffs the sum of four thousand dollars,
also one thousand and four pounds of tobacco at twelve shillings
and six pence the hundredweight, being of the value of twenty
dollars and ninety-two cents, which to the said plaintiffs the said
defendants owe, &c.; stating a judgment of the General Court of
Maryland."
The record then states that the defendant, Seth Barton, having
been arrested upon the
capias ad respondendum, and being
called, but not appearing, it was ordered
Page 11 U. S. 195
that he appear at the next rules and give special bail, &c.,
which he did and pleaded payment, upon which the issue was joined,
and verdict for the plaintiffs. Whereupon the defendant, Barton,
moved in arrest of judgment because,
1. The declaration states a joint cause of action against this
defendant and a certain Thomas Fisher, and therefore a judgment
ought not to be rendered against this defendant alone.
2. Because the plaintiff has not in and by his declaration made
a profert of the judgment stated in the declaration, under the seal
of the General Court of Maryland, where the said judgment is stated
to have been rendered.
3. Because the said Thomas Fisher ought, upon a joint judgment
against him and this defendant (the said Thomas being stated to be
in life and a citizen and inhabitant of the district of Virginia)
to be a party to the judgment, if one is rendered against the said
defendant, and
4. Because the verdict is insufficient, uncertain, and wants
form.
This motion was overruled, and judgment entered upon the verdict
against the defendant, Barton, alone,
"for $4,000, also one thousand and four pounds of tobacco at
twelve shillings and six pence the hundredweight, of the value of
twenty dollars and ninety-two cents, and their costs, &c."
Whereupon the defendant brought his writ of error.
Page 11 U. S. 200
WASHINGTON, J. delivered the opinion of the Court as
follows:
This was an action of debt brought in the Circuit Court for the
District of Virginia by Petit & Bayard against Seth Barton and
Thomas Fisher, upon a judgment rendered in the General Court of
Maryland. The declaration is against the said Barton & Fisher,
late merchants and partners, trading under the firm of Barton &
Fisher, citizens and inhabitants of the State of Virginia, both of
whom are alleged to be in the custody of the marshal. The record
states that Barton, who had been arrested upon the
capias,
gave bail and put in the plea of payment, on which an issue was
joined, and a verdict was rendered against him. He afterwards moved
in arrest of judgment, and amongst other reasons assigned the
following,
viz., that the declaration states a joint cause
of action against the said Barton and one Thomas Fisher, and that
therefore a judgment ought not to be rendered against him alone.
The
Page 11 U. S. 201
motion in arrest of judgment having been argued and overruled,
judgment was rendered against Barton, and the record has been
removed into this Court by writ of error.
The general rule certainly is that if two or more persons are
sued in a joint action, the plaintiff cannot proceed to obtain a
judgment against one alone, but must wait until the others have
been served with process or until the other defendants have been
proceeded against as far as the law authorizes for the purpose of
forcing an appearance. In England the plaintiff must proceed to
outlaw the defendants who have not been served before he can
proceed against those who appear. In Virginia, where this suit was
brought, the plaintiff might have taken out an alias and a pluries
capias or
testatum capias, or, at his election,
an attachment against the estate of such defendant, or, upon the
return of a pluries not found, the court may other a proclamation
to issue warning the defendant to appear on a certain day, and if
he fail to do so, judgment by default may be entered against
him.
But whatever may be the mode provided by law for forcing an
appearance, the plaintiff cannot proceed to obtain a judgment
against one defendant in a joint action against two until he has
proceeded against the other as far as the law will authorize,
unless the law dispenses with the necessity of proceeding against
the other defendant beyond a certain point to force an appearance.
Thus, in Pennsylvania (as is known to one of the judges of this
Court) if the sheriff return
non est as to one defendant,
the plaintiff may proceed against the other on whom the writ was
served, stating in his declaration the return of the writ as to his
companion.
To remove the objection which arises in this case, the plaintiff
obtained a certiorari to the Circuit Court of Virginia on a
suggestion of diminution, and it now appears by the certificate of
the clerk of that court that an alias
capias issued
against Thomas Fisher, which was not returned, but the plaintiff's
attorney caused the suit to be abated as to the said Fisher, upon
information which he had received that the said Fisher was no
inhabitant of the District of Virginia. Had the
Page 11 U. S. 202
marshal returned the writ and stated this fact, the law would
have abated it as to Fisher, in which case the objection to the
subsequent proceedings against Barton would have been removed. But
since the plaintiff could not have supported his action originally
against one defendant on a joint cause of action where it appeared
by his own showing or by a plea in abatement that there was another
person who was jointly bound and might be sued, he ought not to be
permitted, after stating a joint cause of action, to abate or
discontinue his action against one unless authorized to do so by
the return of the process against that defendant. If he does so, it
furnishes a good ground for arresting the judgment.
It is contended in support of this judgment that, as, by the law
of Virginia, the plaintiff must file his declaration at the next
succeeding rule day after the defendant shall have entered his
appearance, or that the defendant may rule him to do so, which if
he fails to do, he shall be nonsuit, the plaintiff not only may but
is bound to proceed against one defendant alone after he has
appeared. But the Court understands this law as applying to a
single defendant or, if there be more, to the appearance of all the
defendants.
Judgment reversed.
