1842. HAMLET ย. wants to non-pros the plaintiff, and the others want to go on with the action, could the one in that case sign for all?] It is submitted that he could. If one defendant BREEDON. Sign non pros. in one week, and another in another, that would be bad. [Maule J. If there can be only one judgment of non pros. that would be so.] There is no difference in this respect between a nonsuit and a non pros. One defendant may have a nonsuit as to all. In Allington v. Vavasor (a) it was held that in trespass against four, there can be but one nonsuit for want of declaring. It is there called a nonsuit instead of a non pros. (b) In Murphy v. Donlan (c) it was held, that after judgment by default against one of two defendants, the plaintiff upon the trial of an issue by the other defendant, might elect to be nonsuited. [Maule J. That is, as to the defendant who had pleaded. Abbott C. J. there expressly says, "there is no inconsistency in allowing a plaintiff to be nonsuited, as to the defendant who has pleaded, although the other defendant may have suffered judgment by default." Tindal C. J. It is a nonsuit quá the one who goes before the jury. If there can be a nonsuit as to one defendant, why should there not be a non pros. also? Erskine J. Murphy v. Donlan was a case ex contractu. Maule J. There are cases in which an action lies against one only, or against several. There are others where the action must be brought against several. In the former, if more than one defendant are joined in the action, why should there not be a nonsuit or non pros. as to one, and the case proceed as to the others?] In Palmer v. Feistel (d) it was held, that in an action against several defendants, a judgment of non pros. can (a) 2 Salk. 455. (b) Non pros. (non prosecutus est breve,) is the law Latin term, and nonsuit the law French term, to denote that the plaintiff has made default in prosecuting his action. The latter term is now used with reference merely to such an abandonment taking place at the trial; but this is a modern distinction. (c) 5 B. & C. 178. Murphy v. Tomlan, 7 D. & R. 619. (d) 2 Dowl. P. C. 507. not be signed until all have appeared. A plaintiff cannot (a) 3 Dowl. P. C. 656. S. C. per nom. Caldwell v. Blake, 2 C. M. & R. 249., 3 (b)" It appeared that the writ of summons was against 1842. HAMLET V. BREEDON. 1842. HAMLET บ. BREEDON. declaration ought to correspond with the writ, and the rule of M. T. 3 W. 4. (which has been cited by the court in this case) was referred to. And Lord Abinger C. B. said: "Your objection at present is too early. You will be in time when the plaintiff has declared against the other." (c) [Tindal C. J. The learned judge meant that there was no irregularity at that time, and that the defendant should wait to see if the plaintiff declared against the other defendant in another action, and then there would have been an irregularity. (b) The learned serjeant also referred to Knowles v. Johnson. (c) TINDAL C. J. If any distinct authority or precedent had been shewn that where one of several defendants was in a condition to non pros. the plaintiff, and the rest were not, the one might sign judgment for all, we must have yielded to it. But no case or reason has been adduced to shew that one defendant may put the others in a situation in which they could not place themselves. Murphy v. Donlan shews that a plaintiff may be nonsuited with respect to one defendant only; and I am unable to see why a defendant who has alone demanded a declaration should not be allowed to sign judgment of non pros. as against himself only. I am of opinion, therefore, that the present judgment is irregular, and must be set aside. COLTMAN J. I am of the same opinion. If it could have been shewn that, where there was a writ of summons against several defendants, the plaintiff could not declare against some of them only, I should have thought the argument on the part of the defendants in this case would have been entitled to great consideration. (a) See Palmer v. Beale, 9 Dowl. P. C. 529. (b) See Pepper v. Whalley, 1 N. C. 71. (c) 2 Dowl. P. C. 653. But the cases, as well as the language of the rule which has been referred to, shew that such is not the law. And I see no reason why a non pros. as to one of several defendants should enure so as to put the case out of court as to all the rest. I think, therefore, the judgment in this case was irregularly signed. ERSKINE J. Before the rule of M. T. 3 W. 4. a plaintiff might have issued a writ against four parties, and might have proceeded in one action against two of them, and in another against the other two; or he might have issued different writs against several defendants in the same action. But this has been altered by the rule in question. That rule however does not say that the writ of summons must be against all the defendants and no one else. And that explains the expression of Lord Abinger in Coldwell v. Blake. The practice in this respect is left as it was before the new rule, that a plaintiff may issue the writ against several, and may declare against some of them only. No authority has been cited to shew that, where one defendant is in a condition to non pros. the plaintiff, and the others are not, the one may not sign judgment as regards himself. I think he may do so; but not as regards the other defendants. MAULE J. I also think this rule must be made absolute on the ground that one defendant is not entitled to sign a judgment of non pros. for all the other defendants, who are not themselves in a situation to non pros. the plaintiff. The plaintiff in this case is not bound, as the proceedings stand at present, to go on against all the defendants. One defendant has a just ground of complaint, inasmuch as having called upon the plaintiff to proceed against him, the plaintiff has not done so. That right of complaint is satisfied by his power to enter 1842. HAMLET V. BREEDON. 1842. HAMLET V. BREEDON. a non pros. as regards himself. It is said the judgment must be as to all, even though the others are not in a situation to call for it. But there is no default on the part of the plaintiff except as against one, and he may take advantage of it. Suppose the others wished the cause to go on; it would be very strange that the plaintiff should be non-prossed as to those with respect to whom there had been no default. Rule absolute. Nov. 25. JOHNSON and Another Assignees of RIDGWAY, a 4. consigned THIS goods to B., a factor, who sold them to C. B. having become bankrupt, his assignees sued C. for the HIS was an action for goods sold and delivered by Ridgway before his bankruptcy. The goods were also claimed by one Renter, who had consigned them to Ridgway, ashis factor. Talfourd Serjt., on behalf of the defendant, having obtained a rule under the first section of the intergoods, which pleader act (1 & 2 W. 4. c. 58.), price of the were also claimed by 4. Held, that C. was entitled to the benefit of the interpleader act. Sir Thomas Wilde Serjt. now appeared for Renter, and contended that his client, as consignor of the goods to a factor, had a right to follow them; for never having been the property of the bankrupt, they would not pass to his assignees. Channell Serjt., for the plaintiffs, argued that it was doubtful, upon the authority of James v. Pritchard (a), whether this case was within the interpleader act. The (a) 8 Dowl. P. C. 890. |