Both according to the English rule and our own, the plaintiff may declare separately against the defendants, upon process not bailable ; but it is otherwise as to process bailable. This distinction is abundantly established by several of the cases referred to by the defendant’s counsel;
Motion granted.
Note. Mr. Paige also urged in this case, and made it a part of his motion, that the capias should be set aside, also, as being against several defendants jointly, some of them in their own right, and others en autre droit. The Court refused to grant this part of the motion, by confining the rule •to the declaration. On this point, Paige referred to 1 Ch. Pl. 37 ; 1 Dunlaps’s Pr. 33; Hall v. Huffam, (2 Lev. 228;) Vin. Abr. Actions, Joinder, (C. d.) pl. 5 and 6. It was probably deemed unnecessary, by the Court, to notice this part of the application, because, by setting aside the declaration, they put the plaintiffs to declare de novo, against all the defendants, in which case the mis-joinder, if any, must be carried forward into the declaration, and give the defendant full benefit of this objection, upon demurrer, or plea, according to the case there made by the plaintiffs. Indeed, this seems, by the authorities cited, to be the proper mode by which to take advantage of such a mis-joinder.