Yates v. Lansing

As this was a joint action of trespass against three defendants, and one suffered judgment by default, the other defendants cannot obtain judgment, as in cases of nonsuit, for the plaintiff cannot be nonsuited in such a case. He cannot be out of court as to the defendant who suffered judgment by default. The authorities to this point are, Weller v. Goyton and Walker, (1 Burr. 358.) and Harris v. Butterley, &c. (Cowp. 483.) It becomes, therefore, unnecessary to examine whether the defendants are prevented, by the circumstances attending the change of the venue, from making the motion at present.

Motion denied.