UNITED STATES SUPREME COURT DECISIONS ON-LINE

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 clubjuris

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. clubjuris

Page 11 U. S. 200