Wheeler v. Thom
Superior Court of New Hampshire
In an action of assumpsit against two defendants, a count upon a promise made by the two only, may be joined with counts upon promises made by the two defendants and a third person deceased. Assumpsit. The three first counts were founded upon promises alleged to have been made by the defendants jointly with one William S. Them, deceased. The fourth count was upon a promise alleged to have been made by the defendants alone.
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In an action of assumpsit against two defendants, a count upon a promise made by the two only, may be joined with counts upon promises made by the two defendants and a third person deceased. Assumpsit. The three first counts were founded upon promises alleged to have been made by the defendants jointly with one William S. Them, deceased. The fourth count was upon a promise alleged to have been made by the defendants alone. The defendants demurred to the declaration, and the plaintiff joined in demurrer. contended, that the fourth count was of a nature not to be joined with the other counts in…
1Opinion of the CourtRichardson, C. J.
If there is in this case a misjoihder of counts, the consequences for which the counsel of the defendants contend, must follow. The declaration must be adjudged insufficient even on a general demurrer. 1 Hen. Black. 108, Rose vs. Bowler.—2 Bos. & Pull. 424, Brigdon vs. Parkes et a.—4 D. & E. 347, Jennings vs. Newman.
But we have attentively examined this case without being able to conjecture any good reason, why the several counts n the declaration should not be joined. It has been said, *398that the defendants cannot plead the same plea to all these counts ; that to the fourth count they must…
2Cases cited1 opinion
- Oliver v. SmithMassachusetts Supreme Judicial Court · 1809