7 Port. 545 | Ala. | 1838
— The only question presented is, whether any judgment ought to have been rendered against Ivey, as the pleadings are joint, and the verdict is against him alone.
The rule mentioned by Mr. Williams, in his note to Saunders, (2 Saund. 207, note 2) that a plaintiff can not discharge his action against any one defendant who has
A more reasonable rule has been adopted in New York, where the plaintiff is permitted to discontinue against a co-defendant, who pleads any matter which shows an inability to make the contract declared on, and he proceeds against the other defendants.—(Hartness v Thomson & wife-5 Johns. 160; Andrus v Waring; 20 ib. 160 ; Whitbeck vs. Cook and Wife—15 ib. 483.)
The rule, however, never extended to those cases where one or more defendants are discharged by matter subsequent to the contract, as in the case of bankruptcy ; which, although a discharge to the action, will not preclude the plaintiff from entering a discharge as to the bankrupt, and proceeding against the other defendants.—(2 Saund. 207, note 2; 1 Wils. 90.) So also, in the case of,executors, one may be discharged on the plea of plene administravit, and a verdict be had against the others.
It is difficult to perceive any sound distinction between a discharge under a statute of bankruptcy, and a dis
Let the judgment be affirmed.