Scott v. Standart

Decided March 15, 1839

New York Supreme Court · decided 1839-03-15

The defendant Standart was the maker, and one David Griffith was the endorser of a promissory note on which the action was brought. The suit was commenced by capias against both maker and endorser under the act of 1832, with an ac etiam clause for the purpose of holding them to bail, they being non-residents of the state. Standart was arrested and held .to bail, and Griffith was returned by the sheriff non est.

Decided 1839-03-15

¶1By the Court,

Bronson, J.

¶2This was not the case of a joint contract, and the plaintiffs could proceed only against the party who had been brought into court. If they could not declare against him alone, they had no alternative but to abandon a suit which had been properly commenced. We have already gone very far in allowing a severance, where the plaintiff proceeds under the statute authorizing the holder to include all the different parties to a note or bill in one ac*643tion. Fuller v. Van Schaick, 18 Wendell, 547. Clark v. Parker, 19 id. 125. I think a severance of the action should be allowed in this case. It forms a necessary~xception to the general rule, that in bailable actions the declaration must follow the process.

¶3Motion denied.