¶1The opinion of the Court was delivered by
¶2It has been settled by repeated adjudications in this state, that, in an action by the sheriff against the receiptor of goods, returned as attached, the latter cannot, in defence, allege the want of a delivery of the goods to him, or that no such goods were attached. He is precluded from such defence, by the acknowledgment in the receipt. However strong may be the objections against the propriety of the proceeding, on the part of' an officer, who returns an attachment of goods, of which he never took the possession, or which never had any existence, yet the persons, who acknowledge in writing the receipt of the goods, described as legally attached, are not permitted to deny the actual receipt, or contest the validity of the attachment. This disposes of the first question presented, as also of the question in relation to the admissibility of the parol evidence offered. The evidence, if admitted, could not avail the defendants.
¶3It did not tend to shew any failure of consideration, or to bring the case within the principles established by the court, in the case of Beach v. Abbott et al. 4 Vt. Rep. 605. The plaintiff, by the attachment, made at the suit of Boynton Sf Brooks v. Butler & Peaslee, did not resume the possession of goods by him formerly attached and delivered to the defendants in this suit, and if any goods were delivered to the present defendants, they were delivered by Butler & Peaslee. The consideration, which passed between the plaintiff and defendants, for the receipt, was the liability of the plaintiff to Emerson and Harvey, the creditors in the first attachment.
¶4The remaining question has never, to our knowledge, been directly decided in this State. It appears that the suit was instituted against five defendants; — that they severed in their pleas; one of them, viz. Lorin G. Butler, having pleaded infancy. Upon this plea, a verdict was rendered in his favor, and against the other defendants, upon their plea ; and the question *127is, whether the plaintiff can take judgment against the other defendants. It might be of no importance, in this case, to discuss the question, whetner the contract of an infant is void, or only voidable; although it would seem, that the case of Gibbs v. Merrill, 3 Taunt. 307, can only be supported on the ground that such a contract is voidable. The cases in England have established, that where an adult and an infant join in a contract, a suit must be brought against the adult alone; and if he pleads in abatement, that the infant was a party to the contract, and not joined, the plaintiff may reply, that the other contractor was an infant. Burgess v. Merrill, 4 Taunt. 468. If they are joined, and insist on the infancy of one of the defendants, the plaintiff cannot avoid the consequence by entering a nolle prosequi, as to the infant. A different rule prevails, where one of the joint contractors becomes a bankrupt. 1 Wilson, 89. Chitty has laid down the rule, that where one of the defendants is discharged from liability, by matter subsequent to the making of the contract, the plaintiff may recover against the other defendants, and enter a nolle prosequi as to him who pleads the discharge. 1 Chitty, 32, 33. In the notes to 1 Saunders, 207, a. it is said that, if in such actions the defendants sever in their pleas, as where one pleads some plea, which goes to his personal discharge, and not to the action of the writ, the plaintiff may enter a nolle prosequi as to him, and proceed against the others. Whether there is any such qualification to the rule “ that the plea must be one, going exclusively in personal discharge, and not to the merits, has been questioned by Justice Story, in .the case of Miner v. Mechanics’ Bank of Alexandria, 1 Peters, 76.
¶5In England, when one of the joint contractors is discharged by his certificate of bankruptcy, they must all be sued, or the defendant may plead the nonjoinder in abatement. The plaintiff is not at liberty to anticipate, in the first instance, what may ultimately, perhaps, be a discharge. Bovill v. Wood, 2 Maule and Selwyn’s Rep, 23.
¶6There seems to be no good reason why the same principle should not apply in the case of infancy. The plaintiff should not be bound to anticipate, not only that one of his joint contractors may prove to be an infant, but that he will avail himself of that defence. It would be extremely inconvenient, in a doubtful case as to the age of one of the parties -to an instru*128ment, that the plaintiff should incur the risk of being able to prove the age, at the hazard of being turned over to a new action. Under our attachment system, something more than a bill of cost frequently is lost, by abandoning one suit for another.
¶7But, whatever may be the rule in England, in this country a rule, better calculated to answer the ends of justice, has been adopted. In Hartness v. Thompson, 1 Johns. Rep. 160, it was held, that in a suit against three, on a joint contract, where the defendants jointly pleaded non assumpsit, and gave in evidence the infancy of one of the defendants, the jury may find a verdict for the infant defendant, and against the others; or the plaintiff may enter a. nolle prosequi as to the infant, and proceed as to the others. A similar decision has been made in Massachusetts. In the case of Miner v. Mechanics’ Bank of Alexandria, before alluded to, it was decided by the Supreme Court of the United States, in an action against several defendants, on a joint and several bond, who severed in their pleas, that the plaintiff might enter a nolle prosequi as to one, and take judgment against the rest. The principle, involved in the case, was fully investigated by the learned Judge, who delivered the opinion of the court, and Judge Johnson, who dissented from the opinion of the court, admitted, that, in a case similar to the one under consideration, the plaintiff might proceed against the adults. His language is, “ if this plaintiff ever had a right to “ proceed against these four defendants, in originating the suit, “ I should have felt no doubt. That is the case in trespass ; “ that is the case where one defendant is bankrupt, or an infant, “ or pleads ne unques executor.”
¶8From our examination upon this subject, we are disposed to adopt the rule, which has been adopted in other countries, and to decide, that this action was correctly brought against all the persons named in the receipt, although it might have been commenced against the adults alone; — that one of the joint contractors having availed himself of his infancy, in a separate plea, which has been found in his favor, the plaintiff may take judgment against the other defendants. '
¶9The judgment oí the County Court is, therefore, affirmed.