#### WILLIAM A. HAMLIN vs. DANIEL McNIEL & AL.

Where an action is against two, the entering of a nolle prosequi against one does not discharge the bail of the other.

The case oCBradhurst v. Erwin, 10 Ire. 54, cited and approved.

Appeal from the Superior Court of Law of Chatham County, at the Fall Term 1849, his Honor Judge Settle presiding.

The case is : a writ issued from the office of the Clerk of Chatham Superior Court, at the instance of the plaintiff, against James A. McNeil and Daniel McNiel, in covenant upon a sealed instrument. It was duly executed and a bail bond taken, with John McNiel and Henry Arnold, the defendants, as bail. One bond only was executed. On the return of the writ, the plaintiff caused a nolle prosequi to be entered as to Daniel McNiel, and prosecuted his suit to judgment against James A. McNiel. The judgment not being paid, this sci. fa. issued to subject the defendants as bail. The question sent here arises on the second plea of the defendants, which is that “the bail are discharged by the amendment of the original writ, by which a nolle prosequi was entered as to Daniel McNiel, one of the original defendants.”

Judgment was rendered for the defendants and the plaintiff appealed.

W. H. Haywood, for the plaintiff.

Kelly and D- Reid, for the defendants.

Nash, J.

The whole ground assumed in the plea is covered by the case of Bradhurst v. Erwin, 10 Ire. Rep. *30754. There, as in this case, the original action was against two defendants upon a contract. The plaintiff suffered a non-suit as to one, and obtained judgment against the other. Upon set. fa. to subject the bail, the same defence was attempted, as here, but unsuccessfully. It is very certain, that any alteration of a writ, which changes the nature of the action, as from trespass to case or otherwise, will discharge the bail. Here, the nature of the action was not altered — after the nol.pros. against Daniel McNeil, it still continued an action of covenant. The bail of James A. Neil were not discharged, and are liable as such.

The jury found the facts upon this plea specially, and it was agreed by the parties, that the Court should pronounce such judgment upon them, as was agreeable to law. The presiding Judge, being of opinion, that the bail was discharged by the nol. pros., pronounced judgment for them. In this judgment there is error; and it is, therefore, reversed, and judgment given for the plaintiff.

Per Curiam.

Judgment for the plaintiff.