Mosher v. Small
Supreme Court of Pennsylvania
In error from the Common Pleas of Lancaster. May 10. This was an action of assumpsit by Small against Mosher, Moorhead and seventeen others. The declaration setting forth the service of the writ on Mosher alone, and the return of nihil as to the others, averred the making of a note by the defendants, their promise and non-performance.
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In error from the Common Pleas of Lancaster. May 10. This was an action of assumpsit by Small against Mosher, Moorhead and seventeen others. The declaration setting forth the service of the writ on Mosher alone, and the return of nihil as to the others, averred the making of a note by the defendants, their promise and non-performance. To this Mosher and Moorhead pleaded the statute of limitations, and the plaintiff replied a former writ against Mosher alone, and a plea in abatement for non-joinder. The plaintiff asked to have the jury sworn to try the issue between himself and Mosher, but the…
1Opinion of the CourtBell, J.
A successful plea in abatement in an action ex contractu, for a non-joinder of parties, cannot be changed into an instrument of proof in a subsequent action on the same contract. As is well said by Gibson, C. J., in Witmer v. Schlatter et al., 2 Rawle, 362, it neither asserts nor denies the existence of any contract whatever, the new parties being conditionally named to enable the plaintiff to connect them with whatever contract may be proved. As against those who pleaded, the record is evidence that all named in it are partners or joint contractors, hut beyond this, it only operates to…
2Cases cited3 opinions
- Stephens v. CowanSupreme Court of Pennsylvania · 1837
- Erdman v. StahlneckerSupreme Court of Pennsylvania · 1825
- Lentz v. StrohSupreme Court of Pennsylvania · 1820
3Cited by1 opinion
- Smith v. Times Publishing Co.Supreme Court of Pennsylvania · 1897