Den of demise of Scott v. Sears, 31 N.C. 87, 9 Ired. 87 (1848)

Dec. 1848 · Supreme Court of North Carolina

31 N.C. 87, 9 Ired. 87

DEN OF DEMISE OF ABNER SCOTT & AL. vs. JOHN B. SEARS.

One of several lessors in an action of ejectment has a right to have his name' erased from the declaration.

He is liable to his co-lessors for his proportion of the costs, but if judgment be •ultimately rendered in favor of the plaintiff he is entitled to be re-imbursed for such proportion out of the costs recovered from the defendant.

Appeal from tbe Superior Court of Law of Wake County, at the Fall Term, 1848, his Honor Judge Dick presiding.

The declaration of ejectment, in this case, was returnable to August Term, 1845, of Wake County Court, and contained but one demise and that in the name of Scott and wife. At that term the defendant appeared, and entered into the common rule and pleaded not guilty. Upon motion of the plaintiffs by their attorney, they were permitted to amend their declaration by adding a count in the name of Ann Jones; and the counsel, on the demand of the defendant, produced a power of attorney from Ann Jones, authorising him to use her name for that purpose. Whereupon, the defendant’s counsel produced to the Court a power of attorney subsequent in date to that shown by the plaintiffs, authorising and empowering him to strike out her name from the declaration. Upon the motion of the defendant’s counsel the demise in the name of Ann Jones was stricken from the declaration. Whereupon the plaintiffs moved that she pay the costs, which was refused; and the plaintiffs appealed to the Supreme Court.

(x. W Haywood,. McRae- and Miller, for the plaintiffs.

W. H. Haywood, for the defendant.

Nash, J.

The case is before us upon the interlocutory order, authorising Ann Jones to have the demise in her name erased from the declaration. If it was a matter of discretion in the Court, we have no authority to interfere with its exercise ; our only business, on appeals, is with the legal errors committed or alleged to be committed. We, however, consider it a matter of right on the part of Mrs. Jones. If she had been the only lessor of the plaintiff, it cannot be questioned, she would have had the right to dismiss the action. We cannot perceive in what manner that right was taken from her, so far as the demise in her name was concerned, by its being joined in the declaration with one from Scott and wife. The demises are separate and distinct, and in no way dependent on each other. The motion here was similar in its character, to entering a nolle prosequi. Where a plaintiff perceives he cannot support his declaration in whole or in part he may enter a nol. pros , either to the whole or part of his cause of action. Tidd’s Pr. 681. 1st Ch. on Pl. 609. 2nd Sellon’s Pr. 458. Fray v. Fray, 2 Bl. R. 815. In this ease Mrs. Jones did not, by withdrawing from the declaration the demise in her name, interfere with the action, as to any right the other lessors of the plaintiff had to prosecute it. We think there was no error in permitting the demise in the name of Mrs- Jones to be stricken from the declaration. .

But we think the Court ought to have made an order on this party for the payment of her share of the costs, incurred on the part of the plaintiffs. She gave an express consent to a count in her name, and, although she cannot be prevented from discontinuing the action so far as it is hers, she is obliged, in common honesty, to pay the other lessors of the plaintiffs or their common attorney her aliquot part of all the costs. Jackson v. Stiles, 5th Cowen 419, For this reason the judgment must be reversed, with directions to the Superior Court, to correct the order appealed from, in the matter here pointed out. If the plaintiff should ultimately succeed, she will be entitled to receive back the costs, so paid by her, out of those collected from the defendant.

Per Curiam. Ordered accordingly.