#### *Lamar & Daniel vs. Wm. R. Reid. Peter Lamar vs. the same. Felix Crosslin vs. the same.*

1. Writs of foreign . attachment were issued against the defendant and Jane Reid, jointly — declarations against the defendant alone, suggesting Jane Reid to be tile wife of defendant, *held*to be fatal on special demurrer.

2. It seems that the proper course of discontinuance, where two defendants have been joined in the same writ, is by leave of the court to discontinue. Leave to discontinue will never be refused, but it must first be obtained. This is the usual practice, and this practice has good reason — so says the court.

*Before*Richardson, J., *at*Abbeville, *Spring*Term, 1842.

The facts of these cases are as follows’: The plaintiffs issued writs of foreign attachment in each of the above cases, against William R. Reid and Jane Reid. In their declarations they declared against William R. Reid alone, suggesting that Jane Reid was the wife of William R. Reid. To this there was filed a special demurrer, for variance between the writs and the declarations. Joinder in demurrer. The court sustained the demurrer, and the plaintiffs appealed from the decision of the court sustaining the dumurrer, upon the subjoined grounds:

1st. That his Honor erred in holding that Jane Reid, a *feme*covert, and wife of defendant, William R. Reid, had been properly served and made a party, by process of attachment against the property of William R. Reid.

2d. Because, admitting that Jane Reid, the wife, could and had been served with process, and made a party, his Honor erred in holding that upon a writ sued out against husband and wife, a declaration against husband alone, suggesting the relation of the parties, was bad on special demurrer for variance between writ and declaration.

3d. Because the decision is, in other respects, contrary to law.

Wilson, for the motion,

said, Jane Reid, being a feme *covert*at the execution of the contract, the contract itself was a nullity. He cited 4 Taunt. 468. The contract is joint and several, and Jane Reid never has been made a party to the suit. The plaintiffs could proceed with*347out noticing her. 1 Hill Rep. 229, *Sadler vs. McKee.*The proceeding in attachment is only to bring the defendant into court, and make him a party; 1 Tread. Cons. Rep. 83 ; 2 McC. 276, Act 1792; 2 Brev. 170; as to process against partners, Act 1823, p. 34. Because there is no difference between the original writ and the declaration, in ordinary cases, it does not follow, of course, that it should not be, in cases of attachment. Chitty Plead. 52; 4 Burr. 2180; Chev. 233, 185; 1 B. *&*P. 49; 4 Term, 694; 3 Hill, 215; 3 Johns. 530, 531; 1 Bing. 68, or 8 C. L. Rep. 253 and 297; 17 ib. 309; 1 B. *&*P. 19; 10 C. L. Rep. 218; Harp. 215 ; leave to amend, ib. 400 ; 1 Peters, 46 ; 15 Johns. 483.

Burt, contra,

cited *Fitch vs.*ffeise, Chev. 185, and said that case was conclusive.

Curia, *per*

Richardson, J.

In the case of *Fitch vs. Heise,*Chev. Rep. 185, this court decided that where two joint obligors had been served with the writ, and the plaintiff suggested a discontinuance as to one, and declared against the other alone, the declaration was bad upon the special demurrer.

The court will generally give leave to discontinue, as a matter of course, yet leave must be first obtained by the usual practice; and this practice has good reason. The names of men often influence the mind and bias a trial by jury; and therefore courts guard strictly against the introduction of any but the exact legal parties to a suit at law; and whether the objection be to the withdrawal, or adding a party, the practice is the same, and has the same reason. The relative position of the litigants is not to be altered at pleasure of either party. In the case before us, the plaintiffs sued William and Jane Reid upon their note, and in attachment. The defendants gave security, dissolved the attachment, and appeared in person. The case then stood precisely as that of *Fitch and Heise.*Mrs. Reid was in court. Afterwards the plaintiffs assumed, and the fact may have been so, that Jane Reid was the wife of the other defendant, and proceeded against Wm. Reid as if she had not been made a party ; but they should have first obtained the leave of the court before they could change the relative position of the parties made by themselves. *348In many cases, much consequence might follow from the change. Notwithstanding, therefore, some cases which might indicate a different practice elsewhere, we would adhere to our own. The demurrer is consequently sustained, but the plaintiffs have leave to discontinue, as to Jane Reid, upon paying the costs of the demurrer, and to declare against the other defendant, giving a rule to plead *de novo.*/

O’Neall, Evans, Earle, and Butler, JJ., concurred.