#### Sherrod v. Davis.

If in an action against two Defendants foi’a joint contract, one of their con"' t no taken ; after the pluries writ, the other may he proceed* ed a.ga...si a’nne.

Titis was an action brought against two Defendants, upon a joint contract. One of them lived out of the State and could not, he taken, but ihr process of the court hud been regularly issued against him, to the pluries which had be<’t> returned non est inventus,. Tim Plaintiff then proceeded against the other, and oiu deed a verdict against him ; and it was moved in arrest of judgment, !h»; it was irregular to proceed attains! Davis tilt the other had In ert taker. This motion having been placed on the argument docket, canto on now to be argued.

Gen Davie argued in substance

That by the law of England, where one of two joint Defendants could not be found, the Plaintiff proceeded to tin* outlawry against h«m, and then de< laced against the Defendant that was in court, that he, fogethet with the other, ook upon himself and promised, &i;. See Stra. 473. 2 Jtlk. 510, 511. And ¡f in a Court of Equity the process against the absent Defendant, was carried on to sequestration, when it apptars the Plaintiff lias done every thing in his power, by using the utmost process the,law allows to compel the appearance of the absent, party, it -uffers him to proceed against, the other for the whole. By parity of reason, when in this country the c-urf perceives the Plaintiifhas used the, whole series of process that the law allows him to enforce, the appearance of a Defendant, it will, in like manner, allow him to proceed for the whole against the D¡fe uiant who is in court. Now by the art of 1777, c. 2 s. 2 ', when the Sheriff'returns non est inventus, the Plaintiff may take a judicial attachment, oran aliasov pluries at his election ; but the act speaks not of any further process, nor indeed is there any further process which can be used here — the law of outlawry is not in force for want of ilie proper officers to conduct, it. It appears by 5 Com. 241 — end by Jacob’s Law Diet, which though not a book of authority, seems to have treated of outlawry much at large, and wi-h cumid-rable accuracy — that there must be > Jiekuzer, exigunter, &c. to make out. the process necessary at the different stages of the proceeding. Also *328.the act which puts in force such pa -ts of the English law Rs are now in use, -says, only such naris of the statute am! common law as were before in force & use here, ami not incompatible with our form of government, shall be still in force. But the proceeding to outlawry was never in torco here, and therefore, is nor a part -if our law — arid by the :2th section of Hie Biü of Rigíus, no man can be outlawed, &('. but by the law of the land; but there, r- no law-in force here for that piup-.-se. If the law of outlaw ry be not in force here for any of these reasons, then there is no other process that a Plaintiff can use, hut that mention-etl in the act of 1777. before mmition-d ; and the Plaintiff having proceeded to the extent of'■ hat process, should be suffered upon the principles before stated, to proceed against the oilier.

i‘ was argued by Baker, e contra

That this was not such a case, as if it happ.-= ed in England, an outlawry could have been pronounced upon — that outlawry was ¡he putting evbtra legem, persons who were subject to K. cud had taken the oath in the Court Leet, 5 Com. Big. 650, but it was error if pronounced against a subject to another government, and resident out of England, or if out of the realm upon public business — -here, the absent De-fvndau’ was a citizen of another government, and resided within the limits ihereof, so In eould riot have been outlawed ; and if tie could not have been outlawed, then according to the agument on the other side, it was not possible to proceed against the other. The reason why they di¿ not in England proceed against the outla w, being, that his property is fmfeited to the King, so that there is nothing for the Plaintiff; but until the outlawry takes place, tin re is a possibility of recovering something againsi him as well as against the other — and if the absent Defendant is under such circumstances that judgment of outlawry in England could not be pronounced -against him, I apprehend there «-an be no proceeding against the other u.idl the absent Defendant be actually brought in — for in England they never proceed gainst th arrested !)-• fr-ndmit, till it appears by the outlawry, there is no possibility of making the other enter into the deier.ee with him. Indeed our act of Assembly seem, to contemplate no other end of process than the taking the Drieudant, for it direr r*.- the alias and pluiies to go till the, party be arrested. See 1777, c. 2, s. 78.

*329 Et

per curiam

The jmlirial proceedings of this country have never recognized I be law of outlawry previous to the Revolution, and therefore that part of the law of England cannot be considered to be in force here at this day. The wordq of the act are, that all such statutes, and such parts of me common law as Were here before in force and use within this territory, &r. and so much of the said statutes, common law, &c. as are not destructive of, repugnant to, or inconsistent with the freedom and independence of this State, and the form of govern-nient therein established, and which have not been otherwise provided for, &c. are hereby declared to be in full force — but tiiis part of the common law having never been used here before the Revolution, cannot within the terms of this act, be now received here as law — though there is nothing in the constitution to repel such a law, should the Legislature think ¡¡roper to establish it — on the contrary, the constitution admits ¡he possibility of outlawing a citizen. 12fh sec. of the Declaration of Rights — No man shall be outlawed but by the, law of ihe land. This implies be may be outlawed survato juris ordine. But although it man may not be outlawed here, yet there is the same reason in certain! circumstances for allowing the Plaintiff to proceed against one of two Defendants in court, where the other cannot be taken, as if it were the practice to outlaw tin absent Defendant. The true reason why in England affer outlawry the law allows a proceeding against tin- Defendant who is taken, is not. because the property of ‘he other is forfeited, blit because lex nemini coget ad • impnssibilia. It requites both to he sued if possible, that botii may bt\ar their* e-qnal burthen of the contract tiny have jointly undertaken to perform. If is for the benefi1 of the Defendant who is in court and amenable, that this is required. When it appears to the court, however, to be impossible for Die Plaintiff to bring both into court, the law will no> longer require this of him ; for tiiai would be to require an impossibility, and to defeat the Plaintiff of his jimt demand. APhough from the nature of the contract each Defendant was answerable in solidum, tiiis would be unjust; and the law does not require it after it hath become evident that the Plaintiff cannot arrest both. 1“ England this iinpo'-sibility is evidenced by the outlaw.y. t>«* utmost process that ti.se law knows, and the Plaintiff hath in his *330power to use. So in this country the law will require the Plaintiff to proceed against both upon a,joint undertaking, that both may be contributory to the performance of this joint contract, until the Plaintiff hath procured legal evidence that it is out of his power to enforce the attendance of some one of them or more : and by analogy, this should seem to be effected here by the last process that the law has provided, thepluries, or the attache ment, &c. Though this is a point not expressly decided in this State since the Revolution, yet the constant opinion and practice of the bar hat.!» been, &c. and it seems extremely reasonable, otherwise one. Defendant by withdrawing himself, might forever prevent a recovery against his co-defendant. This would be a serious mischief indeed. Many Defendants would avail' themselves of it immediately. Our vicinity to other States, would make it the easiest matter in the world to be practised ; and a decision of that kind would occasion the loss of many just debts and demands. If it were necessary in order to support. this opinion to shew that this is such a case as an outlawry would lie in supposing itto have happened in England, it is sufficient to say, that if is totally immaterial whether the outlawry would be erroneous or not, for the reasons mentioned by the Defendant’s counsel, or fur any other reasons, an erroneous outlawry remains good till reversed by the party ; and before ho can be admitted to have his writ of error, he must appear and put in bail to the suit. L. Ray. 349. 2 Salk. 496 — and then the purposes of the Plaintiff’s proceeding to outlawry are satisfied. But there is no necessity to resort to.this consideration — the. Plaintiff here, has used the utmost process that the law allows him, he has therefore done every thing in his power which the Jaw required of him, and he must now be suffered to proceed against the other Defendant; otherwise, he would be without any remedy. This would he to carry the rule in favor of the Defendant much further than the reason of the rule vvili allow of. If. never meant to deprive the Plaintiff of his debt when both could not be taken, but only to prevent him from proceeding against one only when both might be taken. Accordingly, there was judgment for the Plaintiff.

Note — Vide Anonymous, 2 Hay. 70. Where one Defendant is taken, and ,n alias and plwries against the. other Defendant, returned “ n t found,” the Defendant taken, shall be allowed to plead o the action, and to. Plaintiff so >il come to issue as to him. Price v. Scales & Lockhart, 2 Murphey 199.