Coit v. Roach

2 How. Pr. 192

• Court: New York Supreme Court
• Decided: June 15, 1846
• Status: Published

Opinion

*Plaintiff’s counsel insisted, that if the cause of action was specified in the writ,- plaintiff must declare against all the defendants. (3 J. R., 539, per cur.) This was an action in which the true cause of action was expressed in the writ, and was bailable. If the property had not been found, the defendant would have been held to bail by statute; in that case clearly one defendant could not non-pros the plaintiff, and it could make no difference in the character of the action, that the property had been found.

Defendants’ counsel insisted that the fact, that all the defendants were not brought in was no excuse for Ooit neglecting to „ declare. The rule contended for by the plaintiff applied only to cases where the special bail was required. Here, property was taken and no special bail required. (16 John. 44; Graham's Pr. 192, 2d ed.) The motion on the merits was fully answered by the ^posing affidavits.

Jewett Justice.

Denied the motion with $7 costs.