Nealley v. Moulton
Superior Court of New Hampshire
Assumpsit, upon an account annexed to the writ, for ¡⅞17'27, being a balance of accounts. Plea, the general issue. There were also general counts, for goods, wares, &c., and also the common money counts.
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Assumpsit, upon an account annexed to the writ, for ¡⅞17'27, being a balance of accounts. Plea, the general issue. There were also general counts, for goods, wares, &c., and also the common money counts. The plaintiffs, in their specification, under the general counts in their declaration, gave notice to the defendant that they should claim $⅜ 17-27, for balance of an account which they exhibited, for that sum, against 1 Barrows & Moulton,’ the defendant being one of the firm. The plaintiffs offered in evidence their books of account, verified by the oath of one of the plaintiffs, shewing a…
1Opinion of the CourtParker, C. J.
It is a general principle, in actions upon contracts, that if a party be omitted who ought to have been joined as defendant, the objection can only be taken by a plea in abatement. The defendant relies upon a supposed exception to this rule ; and in Gould’s Pleading, which he cites, it is said, that if it appear, from the face of the declaration, or any other pleading on the part of the plaintiff, that a person not made defendant in the suit was a joint contract- or with the defendant, and that such person is still living, (as he must be presumed to be, unless the contrary is alleged,) the…
2Cases cited2 opinions
- Fowle v. BigelowMassachusetts Supreme Judicial Court · 1813
- Ziele v. Executors of CampbellNew York Supreme Court · 1801
3Cited by1 opinion
- Gove v. LawrenceSuperior Court of New Hampshire · 1851