#### THE GOVERNOR vs. JOSEPH WELCH AND OTHERS.

December 1842.

A bond payable to A.B., Governor of the State, for the use of the State, goes to his successor in office, and may be sued upon in the name of such suo cossor.

The plaintiff may enter a nolle prosequi as to any of the defendants in an action upon contract, at any time before final judgment, in the same manner he is permitted to do in an action ex delido.

Where there were several defendants, and the process was served upon a part only, and not run out to a pluries as to the others, and a declaration accepted by those on whom the process had been executed and pleas entered for them, and when the cause came on fof trial the defendants insisted that it was discontinued, and at the same time the plaintiff moved to enter a nolle prosequi as those not taken, which was granted : Held that this prevented a discontinuance of the cause as to those on whom the process had been executed.

Where there are several defendants, and the process is executed on a part only and not run out against the others, tliis may' amount to d discontinuance, hut after verdict the error is cured by the statute of Jeofails.

Appeal from the Superior Court of Law of Macon county, at Spring Term, 1842, his Honor Judge Bailet presiding.

This was an action of debt brought upon a bond, of which the following is a copy, viz:

“ State of North-Carolina:

Know all men by these presents, that we, Joseph Welch, E. L. Poindexter and Joshua Parsons, proprietors of the Tennessee River Turnpike Road, and Asa Enloe, Benjamin S. Brittain, Gideon F. Morris and Isaac Truitt, are held and firmly bound unto Montford Stokes, Governor of the State of North-Oarolina, and his successors in office, in the sum *250of four thousand dollars, to the payment of which well and to be made, we and each of us do bind ourselves, our heirs, executors and administrators, jointly and severally, firmIy by these presents, sealed with our seals, and dated this first day of June, A. D. 1832.

The condition of the above obligation is such, that whereas, by an act of the General Assembly of the State of North Carolina, the Public Treasurer of said State has been directed to loan.to the proprietors of the Tennessee River Turnpike Road, the sum of two thousand dollars, upon terms specified in said act of Assembly : And whereas, the proprietors above named, (Joshua-Parsons, having lately purchased the interest of'William Bryson in said road,) have this day received of William S. Mhoon, Public Treasurer of North-Carolina, the aforesaid sum of two thousand dollars. Now, therefore, if this sum aforesaid of two thousand dollars, with interest from this date, shall be fully paid up to the said William S. Mhoon, Public Treasurer, or his successors in office, on or before the first day of June, 1837, and if upon application of such Public Treasurer, or his successors in office, said proprietors shall promptly give other or additional security as prescribed by the aforesaid act of Assembly, then this obligation to be null and void, otherwise to remain in full force and virtue.

(Signed and sealed-by the parties named in the bond.)”

The action was brought in 1838, in the County Court of Macon, in the name of “ Edward B. Dudley, successor in office of Montford' Stokes, Governor of the State of North-Carolina.” The following persons were named in the writ as defendants, and process issued against them, viz Joseph Welch, Joshua Parsons,. Benjamin L. Brittain, Gideon F. Morris, Isaac Truitt, John McDowell and W. W. Dobson, administrators of Asaph Enloe, deceased, and Thomas W. P. Poindexter and Judith Poindexter, administrators of E. L. Poindexter, deceased. This process was returned executed on Welch and Brittain, and on Enloe’s administrators and the others not found. An alias issued against Morris and Parsons, which was returned executed on Morris, Par*251sons not found. Another writ issued-against Parsons, which was also returned, not found. This is all the process which appears to have issued. At the first return term, J. Roberts was marked as counsel for Poindexter’s administrators, and this entry made : “ N. W. Woodfin for J. Welsh and Paisons when taken.” “ Oyer as to Welch.” The cause remained in this state eight or nine terms jn the County Court, when the plaintiff was non suited and appealed to the Superior Court. The cause was placed on the trial docket in the Superior Court, at Spring Term, 1840, and so continued until Spring Term, 1842, when the following pleas were entered: “ general issue — conditions performed — no breach.” At this Term a jury having been impannelled to try the cause, the bond was proved and read to them. The defendant’s counsel contended, that from a reference to the act of Assembly authorizing the Treasurer to lend the money to the defendants and take the bond sued on, the action could not be maintained by the plaintiff, without shewing that the General Assembly had elected whether the money should be paid,, or stock in the road be taken in lieu thereof; 2dly. That the Legislature had not authorized the suit to be brought; 3dljr. That the suit had been discontinued, because all the defendants had not been taken, and that the pleas, as it then appeared to the Court, were entered only for the defendants on whom process had been served. It was insisted by the plaintiff’s counsel, that this latter objection could not be taken after the jury had been impannelled. It was agreed, however, that all the exceptions of the defendants should be reserved until after the verdict, and leave was given the plaintiff to amend his writ, and to enter a nol. pros, as to those defendants on whom noneol the writs had been executed. A verdict having been taken for the plaintiff’, subject to the opinion of the Court on the points reserved, his Honor was of opinion with the plaintiff on the two first objections, but, after air examination of the record, held on the last point that the suit had been discontinued, and gave judgment of non-suit against the plaintiff, from which the plaintiff appealed to the Supreme Court.

*252 Francis for the defendant,

besides the objections taken below, contended that the-suit should not have been brought in .the name of Dudley as successor, &e. for that no succes-60r°f a sole corporation can take personal property by succession. He cited Com. Dig. Tit. Franchise, letter F. s. 15. Fulwood’s case, 4 Co. Rep. 65. Thomas Co. Lit. 46, b. p. 728. Dyer, 48. 1 Rolle’s Ab. 515.

Clingman for the plaintiff

cited the following authorities: Knight’s case, 2 Ld. Ray. 1014. Greer v Watts, 1 Ld. Ray. 274. Salisbury v Proctor, 3 Sal. 130, 131. Hardress, 504. 6 Term R. 255. Dyer, 346. Horah v Long, 4 Dev. & Bat. 274. State v Buchanan, 1 Ired. Rep. 59.—State v McGee, 2 Ired. Rep. 209.

Daniel, J.

This was an action of debt commenced in the County Court of Macon, on a bond given to Montford Stokes, Governor of the State of North Carolina and his successors in office, and executed by Welch, Poindexter, Parsons, Enloe, Brittain, Morris and Truitt. It was for money borrowed from the State, under the provisions of an act of Assembly. The plaintiff issued,a writ of capias ad respondendum against Welch, Parsons, Brittain, Morris and Truitt, and a summons against the representatives of Enloe and Poindexter, these tw.o obligors having died since the execution of the bond. The capias was by the shei-iff executed on Welch, Brittain and Morris, and as to Parsons and Truitt returned “not found.” The process was run out to a pluries as to Parsons ; but there was neither an alias nor a pluries as to Truitt; nor any alias or pluries as to Poindexter’s representatives. The defendants, Welch, Brit-tain and Morris received a declaration against themselves, and pleaded “ General issue and conditions performed.” At January Sessions, 1840, the plaintiff was non-suited, and appealed to the Superior Court. At Spring Term, 1842, of the Superior Court, the cause was submitted to a jury, and, before they rendered a verdict, the defendant’s counsel moved the court to adjudge that the whole cause had been dis*253continued, because the process had not been run out to a pluries, as to some of the persons mentioned in the original writ, to wit, Truitt and Poindexter’s representatives. At the same time the plaintiff’s counsel moved the court for leave to enter a nolle prosequi as to those persons. The court reserved these questions and the trial proceeded. The.defendants insisted on the trial that the action could not be maintained, as there was no proof that the Legislature had elected to take back the money, rather than its equivalent in the stock of the Turnpike Road, which privilege had been reserved in the said act, if the Legislature should think proper to take the stock in payment; nor had the legislature directed a suit to be brought on this bond. These objections were overruled by the court; and we think the court was correct in so doing. There is no stipulation in the condition of the bond, that the State will take such stock in discharge of the bond. Nor is there any law to stay pro-, ceedings on the bond, until the Legislature should order it to be put in suit. If the Legislature has passed any resolution on the subject, it was the duty of the defendants to she® it. The defendants again contended that the action could not be maintained in the name of Dudley, but that it should have been brought in the name of Stokes. They said that a bond given to a sole corporation aud its successors, did not, in law, go to the successor, but would go to the executor of the first obligee — that bonds given to corporations sole, as bishops, prebendaries, parsons, vicars, &c. would enure to them in their natural capacity, as they cannot take a chattel or chose in action in succession, unless by custom ; and for this were cited Bac. Ab. Obligation, D. 2. Byrd v Wilford, Cro. Eliz. 464. Fulwood’s case, 4 Co. 65. The answer is, that the rule relied upon does not apply to the King. He may take a chattel or chose in action to go in succession — the revenue, national ships and all the materials of war, which are things personal in their nature, go in succession. Specialties and obligations taken to the use of the King will go in the same way. We have no modern authority on this point, because, by the Stat. 33 Herr.

*254^ *s enacted> ^at all-obligations and specialties, taken to the use of the King, shall be of the same nature as a statute staple. They are now as records, and the usual remedy tor a breach is by scire facias. Williams on Ex’ors 653. Bingham on Executions, 228, 229, It appears from the face of this bond that the money belongs to the State ; and the act directs that the bond shall be payable to the Govern- or for the time being. We are of opinion that the plaintiff, who was the successor of Stokes as Governor, may maintain an action on the bond. The jury rendered a verdict for the plaintiff. And the court then returned to the point reserved ; and was of opinion, that the cause had, in law, been theretofore discontinued and gave judgment accordingly, from which the plaintiff appealed to this court. It may be, that an order of dicontinuance might have been proper at the time the motion was made, had not the plaintiff simultaneously moved to enter a nolle prosequi as to those persons named in' the original writ, who had not been taken. It is true, that, in England, if two persons are sued in a bailable action ex contractu or ex delicto, and but one be taken, the plaintiff cannot, without error, serve him with a declaration, until he has run the process to an outlawry against the other. 1 Stra. 473. 2 W. Blac. 759. 2 New. Rep. 404, 231, 433. 1 Wils. 242. 1 Mau. & Sel. 55. 1 Arch. Pr. 123, 124. If he declare against one only where two are named in the writ, the other may, if the writ be bailable, immediately sign judgment of nonpros. 2 Term R. 257. After proceeding to outlawry against the other, you may declare against the one, who has appeared alone, stating the outlawry of the other in the commencement of your declaration. 15 East. 1, 4. Taunt. 299. 1 Maule & Sel. 242. 2 Arch. Pr. 179. By accepting a declaration and going to trial, and a verdict rendered, still at common law the error was'not cured, but it is now cured by the statute of Jeofails 32, H. 8, c. 30, which is.comprehended in our Revised Statutes, c. 3. s. 5. The idea of the Judge was not correct, that the action had been, by force of law, theretofore discontinued, and that a nolle prosequi by the plaintiff, at .the time moved for, *255could not help him. For if the verdict, which the jury were then impannelled to give, had been rendered before the king of the motion for the discontinuance, the above mentioned statute of Jeofails would have cured the defect, and the plaintiff would then have been entitled to a judgment against those, who had been arrested and served with a declaration. The cause was, therefore, as to them, still in court, until the order of discontinuance was entered by the court. In England, in actions upon contracts against several defendants, if the defendants join in their pleas, the plaintiff cannot enter a nolle prosequi as to any one of them, without releasing the others. 1 Wils. 90. 1 Saunders 297, (note.) In actions ex delicto the plaintiff may enter a nolle prosequi as to some of the defendants, and proceed against the others, at any time before final judgment, even although they all join in the same plea and be found jointly guilty. 1 Lord Ray. 597. 1 Wils. 306. 2 Salk. 455, 466. 3 Salk. 244, 245. Arch. Pr. 249. The reason why in England a nolle prossequi cannot be entered as to one or more of the defendants who are sued upon contract, is, that it is a rule there in such actions, that the plaintiff must recover against all or none. That is not the rule with us, for here a plaintiff may recover against one or more, in an action upon contract. Therefore the practice here has long been,-to permit the plaintiff to enter a nolle prosequi in actions upon contract, just as he is permitted to do in actions ex delicto, at any time before final judgment. In this case the record states, that leave was given to the plaintiff to enter a nolle prosequi as to the- defendant's not taken. This was rightr and, consequently, the order for discontinuing the cause was-erroneous and must be reversed r and judgmuent must bn rendered for the plaintiff upon the verdict-..

Per Curiam. Judgment of the court below'reversed, and judgment for the plaintiff.