Ex parte Overick

3 Whart. 175, 1838 Pa. LEXIS 178

• Court: Supreme Court of Pennsylvania
• Decided: February 2, 1838
• Status: Published

Opinion

Pee. Curiam.

We see nothing in the case submitted which requires a writ adapted to the circumstances of it. From first to last, the law has been, that he who joins in responsibility with a disfranchised associate, agrees to abide by his case. As remarked by President Hemphill, in Fife v. Keating, (2 P. A. Browne, 136,) the doubt at one time was, whether the plaintiff was not compellable to sue separately on a liability at once both joint and several; but it has long been settled, that the sacredness of individual privilege may not control an incidental choice of action. The difference here, is, that neither defendant was a subject of arrest when the debt was contracted; but there is no reason why the consequences of joinder in responsibility should not extend to prospective as well as present disfranchisement. Consenting to be partners in liability, joint trespassers or contractors, consent to be partners in the process to enforce it; and though a party knowing before hand that his fellows is disfranchised, knows exactly the position he assumes, yet he must also know, that where he is not disfranchised already, he may become so. And who is to take the risk of that ? Certainly not the creditor, who reposed confidence in the separate responsibility of either, and who is not to be thrown upon a new and an untried proceeding, in his recourse to both. What difficulties *spUng from mandates so dissimilar as a capias and a summons in the same writ, cannot be foreseen; and therefore, without admitting the right of counsel to call upon us for forms in particular cases, it is sufficient to say, that as the plaintiff has a more beneficial writ in the usual form of a capias against both, we decline to interfere.

Application denied.