Norwood v. Rossiter

3 Ala. 134

Opinion

ORMOND, J.

The instrument sued on in this ease, is not embraced in the statute of 1818, (Aikin’s Digest, 267,) by its terms, as it is neithera “bond, bill, covenant or promissory note.” If the question was open in this- Court, we should be inclined to think this case within the equity and meaning of the statute, though without the letter; but we feel ourselves precluded from putting, that construction on it, by the decision of this Court, in Thompson v. Saffold, (2 Stewart, 494,) and Tindall v. Collins, (2 Porter, 17,) which cannot be distinguished from this case. As by the common, law, the discontinuance of a a co-defendant who was a proper party, was a discontinuance of the entire action; and as this case is not provided for by the statute author- ising discontinuances in certain eases, the judgment must be. reversed..