#### ALEXANDER KELLY vs. JESSE F. MUSE

Where there is a judgment against two or more, an appeal cannot be granted unless all the defendants join in the appeal.

The cases of Smith v. Cunningham, 8 Ired. 460, Donnell v. Shields, 8 Ired. 371, Du,nn v. Jones, 4 Dev. and Bat. 154, Gilliam v. Hichs, 4 Dev. 217, Jones v. Ross, 2 N. C Law. Rep. 450, and Brown v. Conner, 10 Ired. 75, (cited and approved.?! "h \ 'l. ,

Appeal from the Superior Court of Law of Moore County, at the Spring Term 1850, his Honor Judge Settle presiding.

The plaintiff warranted four defendants, Muse, Spivej^ McNeill, and McDonald, on a former judgment for $40, and on the 1st of January, 1837, judgment was rendered against the four for debt, interest, and costs. The Justice then made this entry: “The defendant, Jesse F. Muse, no other defendant in the case being present, prays an appeal, and it is granted, by giving for surety one Wil* *183liam D. Harrington.” In the County Court several pleas were put in generally for the defendants, and the cause pended until July, 1847, when Spivey came into Court and declared that the appeal had been taken and prosecuted without his consent or knowledge, and moved to dismiss the same. The Court refused the motion ; and then the plaintiff moved to dismiss the appeal. But the Court refused that motion also, and the plaintiff appealed. The Superior Court at the next term refused to take cognizance of the plaintiff’s appeal, and dismissed it, and remanded the cause with a writ of procedendo to the County Court. At July term 1849, the plaintiff again moved the County Court to dismiss the appeal from the judgment of the justice of the peace, upon the ground, that it was a joint judgment against four defendants, and one of them only appealed ; which motion was overruled, and the plaintiff appealed. At February term 1850, the Superior Court reversed the last decision of the County Court, and allowed the motion of the plaintiff to dismiss the appeal, upon the grouud stated by the plaintiff, and thereupon the defendant, Muse, by consent, was allowed to appeal to this Court.

Kelly, for the plaintiff.

Mendenhall, Haughton, and Winston, for the defendants.

Ruffin, C. J.

The decision of his Honor, from which this appeal was taken, is in conformity with the judgments then recently given by this Court in the case of Smith v. Cunningham, 8 Ired 460, and Donnell v. Shields, 8 Ired. 371, and was, probably, founded on those judgments. Of course, as a majority of the Court concurred in them, his Honor’s decision must stand affirmed, unless the minds of those Judges can be fully convinced, that they were, before, wrong. As that is not the case, it would ordinarily be sufficient to refer to the previous *184pases. B,ut as thei’e is not. now an unanirnity among the Judges, it is, perhaps,, proper, that the reasons which govern tjhe majority, should be stated a. little more at large. Upon recurring to the cases mentioned,, it will be perceived,. that they occurred fn 1848,. and that, the, whole Court at, flipt time united in them; and also that th.ey pro/essed to follow, and, in fact,do follow a rule l,ai,d down upon this poi,n;t iu the earlier cases of Dunn et al. v. Jones, 4 Dev. and Bat. 154, and Gilliam v. Hicks. 4 Dev. 247— the fprmer of which occurred in 1838, and the latter in 183.S, at which periods two other Judges satin the Court, and the Co.urt was then also of one mind. It is also a fact well known, that the case of Hicks v. Gilliam, was decided in conformity with the previous general opinion an,d; the established practice of th.e. profession. Under-such circumstances the Court does not consider it, allowa-i ble now, whatever might have been the opinions ab ori-gine of the Ju,dg-es individually, to overturn a rufo and, principle laid down and a.cted upon, as the ground of decision of the rights of persons, 'in such a series of eases, The importance of adhering to well considered judicial precedents, running through several generations of lawyers and judges, can hardly be overrated. It is difficult duly to estimate it, except by turning one’s mind to the m.ischiefs, which would arise from a total disregard of them, and the misery to a people, who could not tell what the law was, under which they were living, until they took the, opinion of the judge for th,e- time being upon e-v«, ery particular question. That would, indeed, be both a new' and a dangerous principle ; one which the. Court cannQt adopt. But the majority of t¡h,e Court must a.c-Knowledge, that, as it. seems to, them, the, ojd decisions ar.e. right, wh.ieh do not allow an appeal to on.e of two, or more defendants from, a joint, verdict and judgment. It is. true, hardships not-unfreq.uen.tly grow out of the rule.;, and; it must not b.e supposed that the Judges hitherto *185have not been aware of them and willing to prevent them, if they could. In some of the cases the hardship was as great as it could be — for example, in Donnell v. Shields: and observations were made on the hardship with the view of calling the attention of the legislature to it. But the grievance has ever been found to be be* yond the reach of the judicial function. If to be remedied at all, it requires the power of the legislature : and we are persuaded, that, whenever the attempt shall be made, the subject will be found to be one, which will require much caution and consideration to provide a fit remedy without producing or opening the way for greater mischiefs than those obviated. At all events, the Courts have no power of legislating upon the subject. The statute gives the right of appeal, and by it annuls the judgment appealed from, and directs a trial de novo in the appellate Court, except in appeals to the Supreme Court. How is it possible a Court can say, that as to one of the persons, against whom the judgment was given, it is annulled, but not as to the others ? The language is the same as to appeals by defendants and by plaintiffs. Now, if one defendant can have an appeal, how can it be denied to one of two plaintiffs l We do not say, that the two cases ought to be governed by the same rule ; that is for the legislature to determine. But it seems to us, as a matter of judicial construction of a statute, or of judicial authority independent of a statute, an action standing for trial on issues before a jury, cannot in this State be split up, so that different parts of the case will be in different Courts at the same time, in the one instance more than in the other. It has been supposed, that the Court is at liberty to do so, upon, what is called, a new principle, laid down by the legislature, namely, that contracts shall be deemed joint and several, and that actions may be brought accordingly. But, clearly, that cannot affect rights, to which that principle has not been *186applied by the legislature, or alter the constructions of statutes previously existing. If the legislature adopts a ■new policy, the Courts must enforce it as far as the enactment commands or authorises. But they cannot carry the principle itself farther than the legislature has ' carried it, so as to make it reach cases which the legislature would not venture to touch. When a statute au-thorised an appeal from a judgment against two upon a joint contract, it followed, upon the principles of the common law, that there could not be an appeal, unless both defendants joined in it: because the judgment could not be for one and against the other, but must be for both, unless it were against both. There, another statute au-thorises a creditor to sue on a joint contract as if it were joint and several — that is, to sue all the parties together or each separately. When the creditor sues jointly, surely it is not for the defendants, or one of them, to say, that the creditor shall be deprived of that privilege, arid each of them be allowed to appeal and turn the joint action into two several ones. Nor can the Court allow, with‘out some statute to help them, that upon a judgment against two, the plaintiff may take out several executions •as upon two separate judgments. The symmetry of the law would be completely marred thereby. It is true, ¡that, when an action ex contractu is brought against two, ‘there may be a verdict and judgment for one and against the other, as was held in Jones v. Ross, 2 N. C. Law Rep. 450; and that seems to have been carrying the construction of the act of 1789 very far — farther than, on principle, it ought to be carried: because it allowed of a variance between the declaration and evidence, by permitting the plaintiff to recover on the several contract of vone, when the issue is, whether the two contracted to..gether. But it was so decided, and so long decided and acted on, that in Brown v. Conner & Long, 10 Ired. 75, the Court deemed it a duty to submit to it. Yet that de-*187cisión by no means affects the construction of the statutes granting appeals, or alters the rule of law as to the process to be sued out on joint judgments. A particular enactment, altering the law in one point or on one subject, cannot be judicially extended to other points and other subjects,not within the purview of the act; but each statute is necessarily to be construed in reference to the previous law upon the subject of that act, the mischief, and the remedy provided by the act. The acts granting appeals form a system of law upon that subject, and are to be construed upon their own .terms and such reasons as apply to that particular subject ^ and, as it seems to the majority of the Court, the point is concluded by authority and entirely supported by reason, that an appeal, on which another trial by jury is to be had, cannot and ought not to be taken by one of several defendants,, bj himself, so as thereby to split up the cause into seve.«. ral parts, and greatly multiply costs.

It must, therefore, be certified to the Superior Court, that there is no error in the order of that Court, from which the appeal was taken to this Court: so that the Superior Court may remit the case to the County Court, with directions to dismiss the appeal to that Court from the judgment of the Justice of the Peace, to the end that the plaintiff may have execution of the judgment given by the Justice of the Peace.

Pearson, J.

This case presents the question, is a judgment against two or more joint? or is it joint and several, and to be treated in its consequences, as if the defendants had been severally sued?

The decision of Trice v. Turrentine, and Jackson v. Hampton, at the last term, was put by me upon the. ground, that the acts of 1789, 17.96, and 1797, were intended to do away with the hardships, growing out off the doctrine of joint obligations, joint judgments, and *188survivorships; and had made'a change iiTthe law by abolishing the principle of the English law as to joint judgments, and introducing the principle, that the defendants in a judgment are to be treated, as if they had been “ severally sued,” whenever the ends of justice required it. And I ventured the opinion, that as we had, by a liberal construction of these remedial statutes, adopted a new principle and got rid of all those hardships, except one, (which is the one involved in the present case,) it was wiser to rid ourselves of that also, by overruling the cases which adhere to the oid principle, than to embarrass the law, by attempting to sustain those cases by distinctions “ too fine for use.”

• This case made it necessary to review that opinion.— I have performed the duty most anxiously, and the result, is, a clear conviction of its correctness.

My position is, that the statutes referred to, changed the law and introduced a new principle; that this new principle has been acted upon by the legislature and has been adopted by this Court, in two cases, which have never been drawn in question, and which directly conflict with the class of cases adhering to the old principle; and that to relieve ourselves of the confusion, in which we are now involved, and the great confusion, to which we will be exposed in future, it is necessary to adopt the one principle or the other by overruling the cases which adhere to the old principle or the cases which adopt the new principle. If this necessity exists, no one will contend that the new principle should give way to the old one, with ail of its absurd consequences.

The old principle is, that all of the defendants are “ a unit” and make but one, or, as it is elsewhere expressed, “ though they are several persons, yet they make but one defendant, when jointly sued.” 6 T. R. 525.

As a consequence of this principle, all of the defendants must join in an appeal, and the plaintiff', to fix the bail of *189one, must first run a ca. sa. against all. Now, by the cases of Trice v. Turrentine, and Jackson v. Hampton, as decided at the last term, the plaintiff is reliéved from the hardship of being obliged to run a ca. sa. against all of the defendants ; and the cases of Trice v. Turrentine, and Waugh v. Hampton, 5 Ired. 236, 241, which adhere to the old principle, are overruled. It is true, the two Judges, who make the decision, do not agree as to the ground, upon which it is put. The one adopts anew principle, and gives the relief directly: the other gives the relief indirectly, by allowing the plaintiff to instruct the officer not to execute the writ upon one; still the result of the decision is to relieve the plaintiff from a hardship, which is a consequence of the old principle, and it must weaken the authority of the only class of cases which still adhere to it; for, if the plaintiff is releived from one of the consequences, a portion of the defendants should be. It was the plaintiff’s act to sue both, in one action, instead of having two actions, and the judgment in those cases remained as to all of the defendants, unreversed and in full force: whereas, in this ease, the defendant had no option. as to whether there should be two warrants or one, and • the judgment would be vacated as to one, if the appeal is allowed, leaving it in force as to the other, just asuf there had been two warrants. And if the plaintiff, in the one case, is relieved from the consequence of his own act, the defendant in the other ought not be prejudiced, by the accident, over which he had no control, that the plaintiff had sued both in one warrant, instead of having several warrants against each.

At all events, this is a favorable occasion to assail the old principle, and I now proceed to sustain my position. By the old principle, if, pending a suit and before judgment, one of the defendants died, his executor or administrator could not have been made liable, although he was the only solvent defendant. The act of 1797 pro*190vides, that in such case, such process and judgment may be awarded against the executor or administrator of the deceased defendant as if he had been “sued severally.”— Here the new principle is announced, and is applied to one case, so as to relieve against a hardship of the old principle, and the question is, shall this new principle, by a liberal construction oí these remedial statutes, be extended to all cases coming within the same mischief, so as to relieve against all the hardships'? or are we to “stick to the letter” and confine the relief to the cases expressly provided for ?

The Legislature has acted upon the new principle.— The act of 1820 provides, that if more suits than one be instituted against several obligors, the suits, on the return of the writs, shall be consolidated. Now, the lawmakers must have supposed, that the old principle and its consequences had been abolished, and that the new principle,, by which the defendants are to be treated as if “severally sued,” was in force, or else they intended manifest wrong; for, by the old principle, the plaintiff could not proceed against the bail of each, as he could have done, if his suits had been let alone ; and if one of the defendants had died after judgment, the plaintiff had no remedy against his representative; and, on the other hand, the defendants, after the consolidation, must all join in an appeal; whereas, if the suits had been let alone, each defendant had the right to appeal: and upon the supposition, that the old principle was in force, all these hardships were imposed upon the parties, by a wise Legislature, to save a lit tie cost.

Again, the act of 1844 provides, that no ca. sa. shall issue, unless the plaintiff makes oath that the defendant conceals his property. This shows conclusively, that in the opinion of the Legislature, the defendants are to be treated as if they had been “severally sued:” for, if the defendants are “a unit,” a fraudulent debtor must go free, *191if he has an honest co-defendant, as to whom the oath cannot be made. It is a condition precedent and no officer would be justified in issúing a ca. sa. against both, upon an oath as to one.

In Jones v. Ross, 2 N. C. L. R. 450, (1816) it is decided, that in an action ex contractu, judgment may be against one and in favoi' of the other defendant. ' This is directly opposed to the old principle ; and by a liberal construction of the statutes, referred to, the new principle is adopted, and each defendant is treated, as if he hadbeen “severally sued,” and this in favor of the plaintiff, who elected to join the two in one action.

So in the case of Smith v. Fagan, 2 Dev. 298, (1830,) it is said, “it is the polioy of the authorities of the Country to extend the principle of the act of 1789, as far as will completely remedy the evils at common law,” and it is held that the old principle, that a judgment is joint, so that, if one defendant dies after judgment, it cannot be enforced against his estate, is changed, by a liberal construction of those statutes, which apply to judgments, as well as to obligations strictly so called. Here, the new principle is adopted, and the defendants are treated as if they had been “severally sued,” and this too in favor of the plaintiffs. Now then, can it be insisted, that the old principle should be adhered to so as to subject defendants to its hard consequences ? They have no election as to whether there shall be one writ or two ; and it is but reasonable, that although the plaintiff chooses to include them in the same writ, they should be treated and allowed the same rights, as if they had been severally sued. These two cases adopt the new principle, and have been acted upon by the Courts and the profession ever since. Scarcely a Court is held, where judgment is not rendered against one defendant and in favor of the other, and where the representative of one defendant, who died after judgment, is not proceeded against, and it is done so much as a mat*192.ter of course, and with so little question, that many practitioners are not aware of the fact, that under the old principle the law was to the contrary.

The old principle is adhered to in only one class of cases, Hicks v. Gilliam, and six other cases which follow it, where it is held, that as the defendants are a “unit,” all must join in one appeal, and if one refuses, the others must lose their rights, without hope of relief. .

The new principle is adopted in two cases, which have never been questioned. The old principle is adhered to in one class of cases, seven in all, but the authority of these cases, (as they all stand upon the same ground) is weakened by the formidable array of numbers. The new principle, adopted in Jones v. Ross, and Fagan v. Smith, was so much in accordance with the sense of the profession and the common idea of justice, that these cases have never since been questioned, while the old principle, which is acted on in Hicks v. Gilliam, was so much at variance with the sense of the profession and led to such hardships, that it was not only questioned, but sent up to this Court, sometimes under one aspect and sometimes under another, and the present is the eighth time that this Court has been appealed to for relief The struggles of the profession and of the public aganist the old principle, have been like the convulsive efforts of a strong man, seeking to relieve himself from a weight, with which he is oppressed.

That these two sets of cases cannot stand together is self evident. The one adhere to the old principle, that the defendants are a “unit;” the other adopts the new principle, that the defendants, although sued together, are to be treated and have the same rights as if “severally sued.” That confusion will grow out of contradictory decisions, based upon these inconsistent principles, and that there is a necessity to adopt the one and reject the other, is painfully exhibited, by the cases of Trice v. Tur- *193 rentine and Waugh v. Hampton, overruled by Trice v. Turrentine and Jackson v. Hampton; and the case of Brown v. Conner, 10 Ire. 75; there the defendant was made to feel the weight of both ihesc inconsistent princi,ples, being sued with one Long, and judgment in the County Court being rendered against both, according to the old principle, they were forced to appeal jointly. In the Superior Court it was proven, that Conner was not liable for the debt, and a verdict was rendered in his favor, and he had judgment for his costs, and that he go without day ; but, according to the new principle, and on the au* thority of Jones v. Ross, judgment was rendered against Long; and the result was, that judgment was rendered against Conner upon the appeal bond, and he had to pay the plaintiff’s debt and costs, notwithstanding there had been a verdict and judgment in his favor; and such must be the hard fate of all defendants, until the oue principle is adopted and the other is wholly rejected.

I should not feel at liberty to insist upon over-ruling the cases of Hicks v. Gilliam, and the other cases, which follow it, but for the fact of their being directly opposed to the two acts of the Legislature and the two cases to which I have referred, and to which must now be added Conner ancl Brown. This, I think, not only justifies, but makes it necessary, to over-rule them.

No one can read the case of Brown and Conner, and say, the law ought to stand as it does. That case was correctly decided. The conclusion is logical; there was no escape from it, without over ruling Jones v. Ross. That had been attempted in the Superior Court; but this Court sustained it, and, in doing so, over ruled Hicks v. Gilliam, for the two cannot stand together.

The defendants are a "unit” and must join in an appeal. After they join in an appeal they cease to be a unit, and the plaintiff is entitled to judgment against one, although *194he shows no cause of action against the other. Is it right to let this state of things continue ?

I am not in favor of judicial legislation. Where new combinations of circumstances and changes in the state of society develope defects in the law, it is the province of the Legislature to remedy these defects. But where a defect is occasioned by a train of decisions, all involving the same error, it is the duty of the Court to remedy this defect, because it is the consequence of its own wrong action and it should correct its own error, and should not continue in error, until “ confusion becomes worse confounded,” in the hope that the legislature will extend its omnipotent arm and help the Court out of a difficulty of its own creation.

The Court not only has power to eorrect its own error, but it is most proper that it should do so : for, knowing the source and extent of the error, it can best apply the remedy — whereas, the legislature, not knowing the case “ in all of its bearings” may handle the subject too roughly ; and while applying the remedy to one evil, may affect injuriously important principles in other parts of the system.

Per Curiam. Judgment affirmed.