Quigley v. Merritt

In actions ex-contractu, as well as in those ex delicto, the plaintiff may enter a nolle prosequi as to part of the defendants, when -they sever in their pleas, and plead matter going, to their personal discharge. : 1 Saund. 207, a, b; Noke v. Ingham, 1 Wils. 89, and see 3 Esp. 77, S. C.; Jac. L. Diet, title Nol. Pros. And this, is probably so, when they simply sever in- their pleas, without look*477ing at tbe. matter of tbe plea. S'aund. 'nt.' 'sup'. There is no. assumpsit in tbe present case, except as implied by tbe law; at least it may be so, for tbe action may be. founded on a wrong, but waiving tbe- tort. ' Tbe entering a nolle prosequi is not regarded as 'a retraxit or a release, and therefore, it does not operate upon tbe others. In those cases where it cannot be done, it stands upon other reasons. Tbe court should have permitted tbe plaintiff to proceed against tbe remaining defendant.

Tbe judgment is.reversed.