Bush v. Campbell

Citations

• 26 Va. 403
• 26 Gratt. 403

Syllabus

<p>I. In an action of debt upon a bond against five persons, the plaintiff indorses on the process, “ Not to be served on G,” who was one of the five; and he is not brought before the court. There having been two continuances of the cause, and a verdict and judgment for plaintiff against B, one of the defendants, and he having moved for a new trial, and also in arrest of judgment, without at any time objecting to the failure of plaintiff to make G a party; and it appearing further from the motion in arrest of judgment, that G had absconded and left the state before the suit was brought, B must be held in the appellate court, to have waived the objection; and it is too late to make it in that court.</p> <p>3. In an action of debt upon a bond against five persons, upon one of whom the process is not served by direction of the plaintiff, the four plead usury in the bond, and three of them plead severally non est factum. On the trial the jury find in favor of the three defendants, on the plea of non est factum; but cannot agree on the plea of usury. There is a judgment in favor of the three, and the case is continued as to the fourth. Afterwards there is a verdict against the fourth; and he moves in arrest of judgment. Held : Under the statute, Code of 1849, ch. 177, § 19, there may be judgment in favor of the three at one time, and a judgment in favor of the plaintiff against the fourth defendant at another time.</p> <p>3. The act, Code of 1849, ch. 177, $ 19, applies to actions on contract against two or more defendants, where the defense of some of the defendants is personal to themselves, though that defense is, that they never were parties to the contract sued on, as non est factum.</p> <p>4. Though in such action the parties sued live in different counties, and the only parties who live in the county where the suit is brought, have a verdict and judgment in {heir favor on their plea of non est factum, the plaintiff may still proceed in that suit against the other