Bell v. Carrell

Curia.

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; and the only question is, whether the capias is bailable or v A not, within the meaning of the rule. We think the circumstance of an appearance having been indorsed, does not vary the case, for the purposes of this proceeding. The true inquiry is, whether the action, as expressed in the ac etiam, calls for bail. The description of the process turns on the nature of the action, and the ac etiam clause. These being bailable, the process is so, without regard to the question, whether bail is, in fact, required, or not. We are, accordingly, of opinion, that the declaration is irregular.

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.