| Superior Court of New Hampshire | Sep 15, 1824
delivered the opinion of the court.
It is contended, that a release by one of these plaintiffs, is not a bar to this action ; ar,d we shall dispose of this question in the first place, before we proceed to examine the objections, which have been made to the form of the plea.
It is an old rule of law, that, where several join in a personal action to charge a defendant, the release of one is a bar to all. Thus, if tiro join in an action of debt, trespass, or the like, the release of one is a good bar to the action. Shep. Touch 335.-6 Coke 25, Ruddock’s case.—Croke Elizabeth 648, S. C.
But, if divers defendants be charged in an action, and they, for the discharge of themselves, join in an action, in this Case the release of one shall not bar the others. Shep, Touch. 335. — 6 Coke 25, Thus, if judgment be rendered against several defendants, and they join in a writ of error to reverse the judgment, a release of errors by one is no bar.— If, however, judgment has been .rendered against several plaintiffs, and they join in a writ of error, the release of one is a bar to all. 3 Mod. Rep, 134, Hasket vs. Herne.—Bacon's Abr. "Release" g.
In Austin vs. Hall, (13 John. 286,) it was decided, that where several plaintiffs must job in an action, as in trespass quote elaxmim frcgit, a release by or.e was a bar to the action. And in Daniels vs. Daniels, (1 Mass. Rep. 136,) it was decided, that tenants in common and joint tenants must join in an action for the destruction of their title deeds.
In waste, brought by two in the tenuit⅜ the release of one bars both. 2 Coke 68.—Comyn's Digest “ Pleader" 3 O. 16. But, whmi waste is brought in the tenet by two, the release of one bars only himself. 2 Institute 307. The ground of this distinction is this ; where several join in a per-
It is also a rule of law, that in personal actions the nonsuit of one is the nonsuit of all the plaintiffs ; although the rule is otherwise in real and mixed actions. Bacon's Ab. "Nonsnit” e.—10 Mass. Rep. 179.—5 ditto 411.
These principles are easily applied to the case now before us. This is an action on the case, in the nature of waste ; and although it can be maintained only in case an injury has been done to the inheritance, (8 D. & E. 145, Martyn vs. Knowllys) still it is a personal action, and must be governed by the general rule, that a release by one plaintiff in.a personal-action bars all. .
It is also objected, that the plea in this case wants form, because the role,ase is not pleaded strictly as matter arising puis darrein continuance, but only as arising after the commencement of the action. If, after a plea has been filed, new matter of defence arise, it must without doubt be pleaded strictly as arising puns darrein continuance. In such a case, it seems by the books, that courts have always held tlie defendant with much strictness to state the term, from which, and the term, to which, the action was continued, and that the matters arose after the last continuance. The reason why, in England, so much strictness has prevailed, in relation to pleas puis darrein continuance, is probably, that it was intended to prevent the filing of them at nisiprius, to obtain delay. And we here adopt, the same rules with regard to such pleas, with the same object. Hut. when the matter of such a plea is in the first instance pleaded in bar, before any other plea has been filed, we imagine, that the plea may be in the form, which has been adopted in this case. In such a case, we apprehend, that the reasons, upon which the rules relating to pleas puis darrein continuance are founded, do
It is further urged, that the matter of the plea in this case ought to have been pleaded in bar of the further maintenance of the action, and not generally in bar. It is a general rule, that when matter of defence arises after the commencement of the action, it shall be pleaded only in bar of the further maintenance of the suit, and the reason of the rule seems to be, that, as the action must be presumed to have been rightfully commenced, such matter can, in its nature, be an answer only to the further prosecution of it. And it seems, that in England, when matter arising after the commencement of the action is used as a defence, the plaintiff is entitled to costs up to the time, when the matter of the bar arose. At least, the remarks of the court and of the counsel in LeBret vs. Papillon, (4 East 507,) and in Harris vs. James, (9 East 89,) seem strongly to indicate this.
But when a general release is given, after the commencement of the action, the presumption is, unless the contrary appear, that the costs have been adjusted between the parties ; and we are of opinion, that such a release forms an exception to the general rule, and may be pleaded m bar generally.
And it is the opinion of the court, that, in this case, neither party is entitled to costs. It must be presumed that the costs were adjusted, when the release was made. 1 Caines’ Rep. 66, Watson vs. Depeyster.—5 John. 268, Johnson vs. Brannan.—2 Caines’ Rep. 380, Shaw vs. Wilmerden.—2 John. 294, Merchant’s Bank vs. Moore.—1 Caines’ Rep. 116—1 John. 142, Hart vs. Story.
If Moore, who made the release, had been the sole plaintiff, and had endeavoured to prosecute the suit, notwithstanding the release, perhaps the defendant might have been entitled to the costs of resisting such an attempt. But, the release in this instance was by one of several plaintiffs, and may have been made without the knowledge or consent of those, who did not execute it; and when a release by one of several plaint iffs is taken under such circumstances,we think, that the plaintiffs may put the defendant to plead his release.