BARTON

v.

PETIT AND BAYARD

Washington, J.

delivered the opinion of the Court as foliows:

This was an action of debt brought in the Circuit Court for the district of Virginia by Petit and Bayard against Seth Barton and Tl.tomas Fisher, upon a judgment rendered in the General Court of Maryland. Tlie declaration is against the said Barton and Fisher, late merchants and partners, trading under the firm of Barton and Fisher, citizens and inhabitants of the state of Virginia, both of whom are alleged to be in the custody of the marshal.

The record states that Barton, who had been arrested upon the capias, gave bail and put in the plea of payment, on which an issue was joined, and a verdict was rendered against him. He after-wards moved in arrest of judgment, and, amongst other reasons, assigned the following, viz. That the declaration states a joint cause of action against the said Barton and one Thomas Fisher, and that, therefore, a judgment ought not to be rendered against him alone.. The motion, in arrest of judgment having been argued and overruled, judgment was rendered against Barton, and the record has been removed into this Court by writ of error. The general rule certainly is, that if two or moré persons are sued in a joint action; the Plaintiff cannot proceed to obtain a judgment against one alone, but must wait, until the others have been served with process, or until the other Defendants have been proceeded against as far as the law authorizes for the purpose of forcing an appearance. In England the Plaintiff must proceed to outlaw the Defendants who have not been served, before he can proceed against those who appear. In Virginia, where this suit was brought, the Plaintiff might have taken out an alias and. a-plwries capias, or testatum capias, or, at his election, an attachment against the estate of such' Defendant; or, upon the return of a pluries not found, the Court may order a proclamation to issue, warning the Defendant to appear on a certain day, and, if he fail to do so, judgment by default may be entered against him.

But, whatever may be the Diode provided by law for forcing an appearance, the Plaintiff cannot proceed to obtain a judgment against one Defendant in a joint ac tion against two, until he has proceeded against the other as far as the law will authorize, unless the law dispenses with the necessity of proceeding against the other Defendant beyond a certain point to force an appearance. Thus, in Pennsylvania, (as is known to one of the judges of this court) if the sheriff return non esi as to one Defendant, the Plaintiff may proceed against the other on whom the writ was served, stating, in his declaration, the return of the writ as to his companion.

To remove the objection which arises in this ease, the Plaintiff obtained a certiorari to tire Circuit Court of Virginia on a suggestion of diminution, and it now appears, by the certificate of the clerk of that court, that an alias capias issued against Thomas Fisher, which was not returned, but the Plaintiff’s attorney caused the suit to be abated as to the said Fisher, .upon information which lie had received that the said Fisher was no inhabitant of the district of Virginia. Had the ' marshal returned the writ and stated this fact,, the law would have abated it as to Fisher ; in. which case the objection to the subsequent proceedings against Barton would have been removed. But since the Plaintiff could haye supported his action originally against one Defendant on a joint .cause of action wliere it appeared by his own showing, or by a plea in abatement, that there was another, person who. was jointly bound, and might be sued, he ought not to be permitted, after stating a joint cause of action, to abate or discontinue his action against one, unless authorized to do so by the return of the process against that Defendant. If he does so, it furnishes a good ground for arresting the judgment.

It is contended, in support of this judgment, that, as,, by the law of Virginia, the Plaintiff must file his declaration at the next succeeding rule day after the Defendant shall have entered his appearance, or that the Defendant may rule Mm to do so, which if he fails-to do, he shall be non-suit, the Plaintiff not only may, but is bound to proceed against one Defendant alone, after he has appeared. But the Court understands this law as applying to a single Defendant, or, if there be more, to the appearance of all the Defendants.

Judgment reversed.