The design of the action was to recover damages for failing to make title to a lot in the town of Portland. The process was sued out against two defendants, but was executed on but one, and the suit was-discontinued as to the other, and to the declaration against one only, a demurrer was filed. It will be perceived that the foundation oí the action was the certificate, and as the plaintiff proceeded against two defendants in contract, he was, according to the well settled doctrine, bound to have them both in Court before he could file his declaration, unless the defendant not found had been pursued to a pluries, or the instrument sued on was within the provisions of the statute of the 7th of February, 1818, authorizing discontinuances in certain cases. This statute provides only for suits commenced on bonds, covenants, bills, promissory notes and judgments of Courts of record in other States or Territories. It is obvious that the certificate referred to, is neither a bond, bill, nor promissory note; but a mere written statement of a purchase, and its terms sign*496ed by an agent. The declaration then,- by shewing on its face a discontinuance against'one of the defendants, in effect sjlewe¿ that the entire action was discontinued. The demurrer was therefore well sustained.
Judgment affirmed.
Judges Safford and Crenshaw not sitting.