Coleman v. Edwards

5 Ky. 595

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1812
• Status: Published

Opinion

OPINION of the Court, by.

-Ch. J. Boyle,*

Cole man sued out a scire facias to revive a judgment against lohn ItHward*, as principal, and Amos Edwards his 1 , , ‘ r , , * appearance bad. It was returned executed upon Amos Edwards, and not found as to John Edwards. Amos Edwards appeared and plead in bar, that Coleman by der-a had agreed with John Edwards, to receive m discharge of the judgment, property upon certain terms and events therein specified. Coleman discontinued the scire facias as to John Edwards, and demurred to the plea filed bv Amos Edwards. Upon the demurrer the court below gave judgment that the scire facias be quashed ; to which Coleman has prosecuted this writ of error.

Upon very obvious principles the plea filed by Amos Edwards was defective, and C deman would have been entitled to ajudgment in his favor upon the demurrer, had the proceedings upon his parr been correct. Bus they were not so. Tile judgment upon which thesoirir facias was sued out was a joint one, and in such a case lite scire facias could onlv have been jointly sued out against both the defendants — See 2 Tidd’s Prac. 1008, 2 Salk. 598. Where a joint action is. thus required bv law to he had against several, it cannot he discontinued or a nolle prosequi he entered as to one, unless it be for matter operating in his personal discharge without discharging the others, The discontinuance as to John Edwards was therefore a discharge as to Amos Edwards, and had a judgment bten rendered upon the demurrer in favor of Coleman upon a writ of error we should have been bound to reverse it, and to give the same judgrn -nt which the court below has in this case given. — -—Judgment affirmed, with costs.