Jackson against Wakeman and others

Jackson against Wakeman and others. One of several defendants, though they have severed in their pleas, cannot move for judgment as in case of non-suit Otherwise, where the plaintiff declares against but one. J. Platt, for JVakeman, moved for judgment as in case of Sion-suit, for not going to trial pursuant to a stipulation, &c. Wakeman and two other defendants had appeared separately and pleaded separately. A. Burr, contra, objected, that the application should have been by all the defendants. One of several defendants cannot move for judgment as in case-of non-suit. Platt. That is where the defendants have pleaded jointly. Here they have severed, and each stands upon his own rights throughout. He cited Shawe et al. v. Colfax et al. (3 Caines, 98.) [MAJORITY — Curia.] Curia. On looking into the cases, we are satisfied that one of several defendants cannot sustain this motion. That the defendants sever in their pleas, does not alter the case; though it would be otherwise, should the plaintiff declare against one only. That would be an election to proceed separately, and would, in fact, be an action against one defendant only. This was the case in Roe v. Cock, (2 T. R. 257) and one defendant was allowed to sign judgment of non pros. The consequence of granting this motion, will be to put the plaintiff out of Court as to all the defendants ; for we cannot non-suit as to one and retain the cause as to the others. That this is so, was expressly decided in Powell v. White et al. (Doug, 169.) Philpot v. Muller, (id. n. 56,) was trespass against two, and one signed a non pros. Buller, J. said, ie there was a great difference between a nolle prosequi, and judgment of nonpros ; for by the latter the plaintiff is put out of Court as to all the defendantsand he held the judgment irregular. The same distinction was held in Roe v. Cock, (2 T. R. 257,) and in Butler v. Upton, (id. n. a) but in both these cases, the plaintiff had proceeded against the defendants severally, which was the reason why the non pros was not set aside. The motion for judgment, as in case of non-suit, depends upon the same principle. Motion denied. Vid. Clement v. Crossman, 8 John. 287.