Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 68
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135-136 SUPREME COURT.
Austin v. Clapp.
The accuracy of these general rules, as deducible from the English decisions,
may be admitted; but they are to be understood, it is conceived, with certain
qualifications, and they [135] have not been considered, especially by the
American courts, binding as matter of principle, but rather as matter of practice
to be governed by considerations of convenience and policy.
In the case of Minor et al. v. The Mechanics' Bank of Alexandria (1 Pet. R.,
46) the authorities upon this subject, both English and American, are reviewed
in an elaborate opinion by Mr. Justice Story; and various qualifications of the
rule as stated inl the text of Mr. Clitty, above cited, are shown to exist even in
the English decisions; as where the defendants sever in their pleas and one
defendant pleads some plea which goes only to his personal discharge as bankruptcy,
ne unques executor, andc the like, the plaintiff may enter a no!le prosequi
as to him, and proceed against the others. (1 Saund. R., 207, n. 2.)
After citing the authority of Sergeant Williams from the note in 2 Saunders,
for this proposition, Mr. Justice Story says: "The only question is whether
there is any Stlch qualification upon it as that the plea should be one going
exclusively in personal discharge, and not to the merits." And his examination
and reasoning upon the English cases go strongly to question the existence
of the qualification, if not wlolly to deny it, where the contract is several as
well as joint. (1 Pet. R., 76, 78.)
But the American cases, according to Judge Story, have gone a step further,
(Id., 78.) And he cites Hlartness v. Thompson (5 Johns., R., 160) and Woodward
v. Marshall, (1 Pick. R., 500.) In the former case, where an action was
brought against three upon a1 joint and several promissory note, and tlere was
a joint plea of non-assumpsit and the infancy of one of the defendants set up at
the trial, it was held no ground for a nonsuit; but the plaintiff, upon a verdict
found in his favor against the other two defendants, might enter.a nolle prosequi
as to the infant, and take judgment upon the. verdict against tile others. In
the latter case. upon a joint contract and suit against two persons, one of whom
[136] pleaded infancy, it was held that a nolle prosequi might be entered as to
the infant, and the suit be prosecuted against the other defendant.
Upon these cases )Mr. Justice Story observes that the plea went not only in
personal discharge, but proceeded upon a matter which established an original
defect in the joint contract. Indeed, the court, he adds, seem to have
considered the question rather as a matter of practice to be decided upon convenience
and policy than as a matter of principle. He proceeds to consider the
question whether it is material that the nolle prosequi in that case was entered
after instead of before judgment, and concludes tlat there is no good reason
why it may not be (lone after as well as before judgment, *' when there las been
no proceeding which binds the plaintiff to consummate a judgment against the
party whom he wishes to dismiss."
The case in which this opinion of the Supreme Court was pronounced by Mr.
Justice Story was an action on a joint and several bond. Some of the parties
sureties severed in their pleadings from the principal, and a trial and verdict
were held against them. Afterwards the principal was called upon to plead,
and did so. Judgment was then entered against the sureties, and a nolleprosequi
was entered as to the principal. To this judgment or the proceedings no
exception was taken in the court below, nor was a new trial asked by the
sureties. The court held that there was no decision exactly in point to the
case; that there is no distinction between the entry of a nolle prosequi before
and the entry after judgment, as applicable to such a case; that where the
defendants sever in their pleadings a nolle prosequi ought to be allowed against
one defendant; and that it is a practice wliich violates no rules of pleading,
a.n( will generally subserve the public convenience. And they affirmed the
judgment. (See 3 Iredell, 249, and 8 Miss., 159.)
This and the other American cases cited go very far to dispense with the rule
extracted from the text of Mr. Chitty. [I8T3] They show that where the con68
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/76/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .