The opinion
The rule of the common law is free from doubt that where, in cases of contract, an action is brought against several, which cannot be supported against all, the plaintiff cannot have judgment, because the contract proved differs from that declared on — a joint contract is declared on, a several one is proved. But this rule is altered by the act of 1789, ch. 57, sec. 5, which provides "that in all cases of joint obligations or assumptions of copartners or others, suits may be brought and prosecuted on the same in the same manner as if such obligations or assumptions were joint and several." Now, the plaintiff sued both, and so far treated it as a joint promise, yet the verdict of the jury has made a severance; and as no time is limited within which the plaintiff is bound to make his election, there does not seem to be any good reason why it may not be made as well after the verdict (336) as before. In the same manner as where a joint action is brought against two upon a tort, in its nature joint and several, and upon not *Page 260
guilty being pleaded, a verdict is given against one and in favor of the other, the plaintiff shall have judgment against him who is found guilty.
Affirmed.
Cited: Bradhurst v. Pearson , 32 N.C. 56 ; Brown v. Conner, id. , 78; Neil v. Childs, id. , 198; Kelly v. Muse , 33 N.C. 186 , 191 .