J. KIMBALL AND WIFE et al. vs. RUFUS WILSON

contended, that as the release was given after the action had been continued, it should have been pleaded as given puis darrein continuance. They also insisted, that the release ought to have been pleaded in bar of the further maintenance of the suit, and not in bar generally. 1 C hitiy’s PI. 531, 634.

It was further urged, that the release of one of the plaintiffs was no bar to the action.

contended,

I. T lat a release, by one tenant in common, is a bar to an action by him and his co-tenants, (6 Co. Rep. 25, Ruddock's case, — Shep's Touch,. 335.-5 Bac. Jib. 699⅝ 702, 703. — 8 John. Rep. 68, Pierson vs. Hooker. — 13 ditto 286, Austin vs. Hall,) because they must join. Lili. s. 315. --Co. Lilt. 198.— 3 Bac. Jib. 70G. — 1 Mass Rep. 131, Daniels vs. Daniels.

IÍ. A release, pending the action, may be pleaded generally in bar of the action. Fort. Rep. 338, Price vs. Kenrick, cited with approbation 5 Bac. Ah. 479, & 1 Com Dig. Abat. I, 24, p. 98. — Rast. Ent. 503. — 13 John. 286, Austin rs. Hall. —7 Mass. Rep. 76, Everenden vs. Beaumont.- — 4 East 502, Lebretvs. PapiUon. — System of Pleading 406, cites 15 E. IP‘~ Ero. lit. Coni. 31. Analogous to this, are the cases of pleas of outlawry, since the action brought; 1 Salk. 178, Moor vs. Green. — 5 Mod 11, S. C. approved by Comynsr Dig. Mai. / 24, p. 98. Judgment recovered against an administrator; 4 East 502, Lebretvs. PapiUon, where it is spoken of as the usual course. Doug. 110, Sullivan vs. Montague, Mg. Payment, 3 John. Rep. 229, Tillotson vs. Preston-Award, Comyn's Rep. 328, Thomlinson vs. Arris kin. Removal from office of an administrator, 5 Mass. Rep. 275, Jewett vs. Jewett. Distribution under the insolvent act, 15 Mass. Rep. 325, Andrews vs. Gullison. — Chitiy, 1 Plead. 531, lays down the rule that actio non “ always alludes to the commencement “ of the action, and not to the time of the plea.” The authorities he refers toare 3D. & E. 18G, Evans vs. Prosser, & 5 East 502, Lebret vs. PapiUon. The former was the case of a plea of offset, as to which the rule unquestionably holds. But the court, in deciding that case, do not pretend that the rule extends to any other case; and the authorities cited distinctly shew that there can be no such general rule. The case of Lebret vs. PapiUon is founded wholly on the case of Evans vs. Prosser, misunderstood, and distinctly misapplied. The class of cases, in which facts, occurring pendente lile, are considered admissible in evidence under the general issue, evidently prove that such facts, if pleaded, may be pleaded generally in bar. Such are the cases of accord and satisfaction strongly implied in 7 John. Rep. 194, Jackson vs. Rich,— ¡¿awes' Pleading in assumpsit 666, per Ld. Kenyon. — 2 Esp. Rep, 504, Story vs. Bloxham; Of payment, 2 Esp. 504, per Ld. Kenyon; Of foreign attachment, 1 Salk. 291, Savage's ease; Satisfaction, 3 Burr. 1345, Bird vs. Randall.* — 7 Mass. Rep. 334, Baylies vs. Fettyplace. — 10 ditto 131, Poor vs. Robinson; Recovery and release, per Ld. Mansfield, in Bird vs, Randall, ubi supra; Certificate of seizure, under a revenue act, Dovg. 106, Sullivan vs. Mountagu.

III. A plea of release, pending an action, may be joined with the general issue. 1 Tidd 610 —1 Ch. PI. 542. — Com. Dig Plead. G. 2 — 13 John. Rep. 286, Austin vs Hall — Com. Rep. 328, Thomlinson vs. Arriskin, — 7 Mass. Rep. 76, Ever- miden vs. Beaumont, and the analogous cases of Tillotson vs. Preston, and Lebrel vs. Papillon, ubi supra. — 3 Went. PL 137. —3 Ins. Clcr. 2G9.

IY. The second plea in this case is not a plea puis darrein continuance, because such plea can only be entered after a fornjer plea has been pleaded; it cannot be a waiver of the general issue, because this being pleaded at the same time with the release, is not, in the sense of the books, a former plea. 7 John. Rep. 194, Jackson vs. Rich —l Ch. PL 634.— 5 Bac. M..4-77, 478, 479. — 3 John. Rep. 229, Tillotson vs. Preston. — Lawes’ PI. in Jlssumpsit, 666, 716. — 1 Coin, Dig. Mat, I 24.-2 Tidd 774.-3 Bla. Com. 316.

V. it is never necessary to plead in bar of the further maintenance of an action, except in pleas since the last continuance. The idea was never suggested in any authority, nor in any elementary writer, until the case of Lebrel vs Pa-pillon. In that ease, no such question arose, the only question being, whether to a plea of alien enemy, (a war having commenced since the commencement of the suit,) it was sufficient to reply that the plaintiff was an alien esmie at the time of commencement of the action. The want of further was at most merely form, which was waived by the pleading over. The only authority cited was an end.il in Lutuiche 1143, Campion vs, Baker; and the precedents referred to in RasleWs Entries, Jlppels enmort 4, Deten release 7, are both pleas puis darrein continuance. Com. Dig. Mat. I 24, cited as, an authority, is contrary most explicitly. Chitty, in stating the doctrine, says, “ but as mistake in these cases will not vitiate” (1 Plead. 539) “ a rule, the disregard of which is of so little consequence, does not deserve the name.”

VI. The court are ex officio bound to give such judgment on the whole record, as ought to be given without regard to any imperfection in the prayer of judgment. 4 East 502, Lcbret vs. Papillon, and the cases there cited. — Plow. 66, 69, Dive vs. Manningham.-8 Co. 93, Fronds’ case.— Winch 75, West lie vs. King..- — 1 D. & E, 125, Kirk vs. Now-ell, — 2 Stra. 1055, Street vs, Hopkinson. — Rep, T Hard. 345, S. C. and also 2 Bos. & Pul. 420, Powell vs. Fullerton. — & Sand. 210. d. n. 1,

The case of Austin vs. Hall, (13 John, 286) qvatucr pcdibas currit with this case., and is an authority emphatically in point for the plaintiff. Like this case, it was an action by co-heirs for a trespass to their land; a release obtained from one coheir; pendente lite, was pleaded generally in bar of the action, and joined with a plea of not guilty; and judgment was'given for the defendant.

delivered the opinion of the court.

It is contended, that a release by one of these plaintiffs, is not a bar to this action; ar,d we shall dispose of this question in the first place, before we proceed to examine the objections, which have been made to the form of the plea.

It is an old rule of law, that, where several join in a personal action to charge a defendant, the release of one is a bar to all. Thus, if tiro join in an action of debt, trespass, or the like, the release of one is a good bar to the action. Shep. Touch 335.-6 Coke 25, Ruddock’s case.—Croke Elizabeth 648, S. C.

But, if divers defendants be charged in an action, and they, for the discharge of themselves, join in an action, in this Case the release of one shall not bar the others. Shep, Touch. 335. — 6 Coke 25, Thus, if judgment be rendered against several defendants, and they join in a writ of error to reverse the judgment, a release of errors by one is no bar.— If, however, judgment has been.rendered against several plaintiffs, and they join in a writ of error, the release of one is a bar to all. 3 Mod. Rep, 134, Hasket vs. Herne.—Bacon's Abr. "Release" g.

In Austin vs. Hall, (13 John. 286,) it was decided, that where several plaintiffs must job in an action, as in trespass quote elaxmim frcgit, a release by or.e was a bar to the action. And in Daniels vs. Daniels, (1 Mass. Rep. 136,) it was decided, that tenants in common and joint tenants must join in an action for the destruction of their title deeds. In waste, brought by two in the tenuit⅜ the release of one bars both. 2 Coke 68.—Comyn's Digest “ Pleader" 3 O. 16. But, whmi waste is brought in the tenet by two, the release of one bars only himself. 2 Institute 307. The ground of this distinction is this; where several join in a per- sotial action, a release by one bars all; but if the personalty be mixed with the realty, it is otherwise, 2 Coke 68. Waste in the tenuil lay against one, whose estate in the place, where the waste was, had expired, so that nothing except damages could be recovered. But in waste in the tend, which lay against one, whose estate had not expired, not only damages, but the place wasted, was recovered. 2 Saund, 234, note i.—Comyn's Digest “• Pleader” 3 O. 22.

It is also a rule of law, that in personal actions the nonsuit of one is the nonsuit of all the plaintiffs; although the rule is otherwise in real and mixed actions. Bacon's Ab. "Nonsnit” e.—10 Mass. Rep. 179.—5 ditto 411.

These principles are easily applied to the case now before us. This is an action on the case, in the nature of waste; and although it can be maintained only in case an injury has been done to the inheritance, (8 D. & E. 145, Martyn vs. Knowllys) still it is a personal action, and must be governed by the general rule, that a release by one plaintiff in.a personal-action bars all.. It is also objected, that the plea in this case wants form, because the role,ase is not pleaded strictly as matter arising puis darrein continuance, but only as arising after the commencement of the action. If, after a plea has been filed, new matter of defence arise, it must without doubt be pleaded strictly as arising puns darrein continuance. In such a case, it seems by the books, that courts have always held the defendant with much strictness to state the term, from which, and the term, to which, the action was continued, and that the matters arose after the last continuance. The reason why, in England, so much strictness has prevailed, in relation to pleas puis darrein continuance, is probably, that it was intended to prevent the filing of them at nisiprius, to obtain delay. And we here adopt, the same rules with regard to such pleas, with the same object. Hut. when the matter of such a plea is in the first instance pleaded in bar, before any other plea has been filed, we imagine, that the plea may be in the form, which has been adopted in this case. In such a case, we apprehend, that the reasons, upon which the rules relating to pleas puis darrein continuance are founded, do not exist, and that it is sufficient, if the matter be alleged to have happened after the commencement of the action.

It is further urged, that the matter of the plea in this case ought to have been pleaded in bar of the further maintenance of the action, and not generally in bar. It is a general rule, that when matter of defence arises after the commencement of the action, it shall be pleaded only in bar of the further maintenance of the suit, and the reason of the rule seems to be, that, as the action must be presumed to have been rightfully commenced, such matter can, in its nature, be an answer only to the further prosecution of it. And it seems, that in England, when matter arising after the commencement of the action is used as a defence, the plaintiff is entitled to costs up to the time, when the matter of the bar arose. At least, the remarks of the court and of the counsel in LeBret vs. Papillon, (4 East 507,) and in Harris vs. James, (9 East 89,) seem strongly to indicate this.

But when a general release is given, after the commencement of the action, the presumption is, unless the contrary appear, that the costs have been adjusted between the parties; and we are of opinion, that such a release forms an exception to the general rule, and may be pleaded m bar generally.

And it is the opinion of the court, that, in this case, neither party is entitled to costs. It must be presumed that the costs were adjusted, when the release was made. 1 Caines’ Rep. 66, Watson vs. Depeyster.—5 John. 268, Johnson vs. Brannan.—2 Caines’ Rep. 380, Shaw vs. Wilmerden.—2 John. 294, Merchant’s Bank vs. Moore.—1 Caines’ Rep. 116—1 John. 142, Hart vs. Story. If Moore, who made the release, had been the sole plaintiff, and had endeavoured to prosecute the suit, notwithstanding the release, perhaps the defendant might have been entitled to the costs of resisting such an attempt. But, the release in this instance was by one of several plaintiffs, and may have been made without the knowledge or consent of those, who did not execute it; and when a release by one of several plaint iffs is taken under such circumstances,we think, that the plaintiffs may put the defendant to plead his release. Without subjecting themselves to costs. The plea is adjudged sufficient, but no costs are allowed to either party.