delivered the opinion of the court:

In this case suit was instituted against DeWandalaer, Lincoln, and Willard. During the trial in the circuit court, after evidence showing that Lincoln & Willard alone were bound, if any of the parties were, the plaintiff moved for leave to enter a nolle proseguí as to DeWandalaer, which motion was granted, and the cause proceeded against Lincoln & Willard.

The main question assigned as error is the power and propriety, in practice, of the court to allow a dismissal or nolle proseguí as to one or more of the parties in a suit against several, when the evidence shows a liability against those only who are retained as defendants.

A majority of the court is of opinion that, in order to save litigation and further the ends of justice, according to the established rules of law, this may be done during the progress of the trial as well as when the trial begins.

It will be found by the antiquarian in legal lore to have been the rule at common law that, after writ issued and before declaration filed, the plaintiff could declare against *347one or more who had been summoned by the writ, as he might be advised. Our statutes and rules in furtherance of a more progressive idea have reserved the same rule at any stage of the trial. Not only this, but, even where there is a j oint obligation of covenant, “ an action may be sustained and judgment recovered against all or any of the parties by whom the money is payable, at the option of the plaintiff!” Bev. Stats., sec., 827.

At common law, the declaration could be amended by the writ or the declaration could be against some or all the parties in the writ. Finally, the declaration must be the chart by which to proceed. 1 Chitty’s Archb. Prac., Q. B., 236, 237, also 223 ; 2 ibid., 1466,1467.

Buie 7 authorizes amendments to be made at any stage of a cause, for the purpose of determining the real question in controversy between the parties, even if the defect or error be that of the party applying to amend.

By the common-law rules, the party was forced to rely upon his declaration, and upon that to rest and stand, and after trial begun he could offer no further amendment.

He may now have the benefit of these rules down to the time the jury retires.

In equity, even after a cause has been submitted, the pleadings may be amended to conform to the evidence. Statutes have been enacted to give the law courts power to mete out justice in a cause.

It will be seen by reference to the change made in England in 1852, in the practice, that our Buie 7 is a copy, “verbatim et literatim,” of the rules introduced in the practice there. The construction given by the-highest court in that country of their statutes and rules would certainly be a precedent to govern us in the construction of similar statutes and rules. In fact, we borrow from each other — we being the younger are the larger borrowers; we try to express our meaning in the English language, and we pay enough respect to each other to consider that similar rules, in the two countries, are expounded in the same way by each, and each is ready to follow the exposition first made. Hence, the construction given by the British courts of their own statutes, of which ours are copies, have always been followed in our *348courts, unless some local or constitutional limitation imposed the necessity of departing from their construction.

A technical discontinuance would be proper where several were sued and some only served with process.

A dismissal is another mode of disposing of a suit, and a nolle prosequi another.

delivered the following dissenting opinion :

Before inquiring into the proper meaning and true construction of our statute, sec. 827, Rev. Stats., it will be well to consider what the law was.

Prior to the adoption of this statute, and by a comparison of the law with the statute, we can readily discover in what respect the common law was sought to be changed.

I now quote from Gould on Pleading, sec. 116, p. 280: “If, on a contract made by one person only, he and another are sued as upon a contract made by both, the misjoinder is a good ground of defense under the general issue;” and he adds, “For the contract made is not the same as that declared upon,” 1 East, 48; 2 Day, 272; 2 New Rep., 454; 11 Johns., 101; 1 Esp., 363; and in the same section it is-stated: “And in- an action against two joint contractors, asin assumpsit against A and B, as joint promisors, if thejury find that A promised, but that B did not, A may arrest the judgment; 3 East, 62; 1 Keb., 284; Carth., 361; 3 Brod. & Bing., 54. Judge Gould adds: “For the contract declared upon is disproved by the verdict; ” and, further: “And when an action is thus brought against two, upon a contract made by one of them only, the plaintiff cannot enter a nolle prosequi as to the other, and then proceed against the party bound alone.” See 4 Taunt., 470; 3 East, 76; 5 Johns., 160; 1 Pick., 500. “For to allow this would be to enable the plaintiff, by his own act, not only to defeat a good defense upon the merits, but also to substitute one action for another, or rather to transform an action against A and B into an action against A alone.”

Thus stood the law of this District prior to the passage of the act of 22d of February, 1867, vol. 14, p. 405, Statutes at *349Large, several sections of which act are incorporated in the recent revision of the laws of this District.

We are now prepared to consider the true meaning and intent of section 827, a section which is almost a literal copy of a statute passed by several State legislatures nearly fifty years ago. It enacts that where money is payable by two or more persons jointly or severally, as by joint obligors, covenantors, makers, drawers, or indorsers, one action may be sustained, and judgment recovered against all or any one of the parties by .whom the money is payable, at the option of the plaintiff. This statute was intended to remedy two defects in proceedings at comman law. First:-If a plaintiff sued one person upon a contract in which another person was jointly liable, the person sued might interpose a plea in abatement, in substance, that some person not sued was jointly liable with him, and if the plaintiff took issue upon that plea, and that issue was found against him, the suit would abate.

Under this section, (827,) a plea in abatement, by reason of the nonjoinder of all the parties to the contract, is no longer available. The second object sought to be obtained by this section (827) was that the plaintiff might commence a suit against all persons who were jointly or severally liable to him, such as makers, drawers, or indorsers, any one of whom, or all of whom, may be sued, and a recovery had in the same action. At common law no action could be maintained against the maker and indorser of a promissory note; nor could an action be maintained against the covenantors in an instrument under seal, and against a party who guaranteed the performance of the covenants of the deed; in short, this wipes out the plea in abatement in suits ex contractu, by reason of all the joint contractors not being proceeded against in the same suit; and, in the second place, allows an action to be brought against parties who are not joint contractors, but severally liable in the same contract as guarantors, in-dorsers, &c., of the same contract. This section allows the plaintiff to select any one or more of several joint contractors, or those severally liable on the contract, and proceed to judgment against them, if he can but establish their joint or several liability on the contract sued upon; but it nowhere anthorizes or intimates that the plaintiff may join in a suit ex *350contractu any and everybody at his pleasure; and, failing to. prove the liability of all the parties defendant, he may, nevertheless, have judgment against some one of the parties sued, if he can establish, by proof, the liability against one of the parties sued. In short, this act does not touch, or pretend to touch, the rule of the common law; but where more defendants are sued than can be proved liable, the action will abate, and the plaintiff must be non-suited. And this objection may be taken at the trial under the plea of the general issue.

In this case I think the judgment of the court below ought to be reversed.