Broughton v. Fuller
Supreme Court of Vermont
This was an action of assumpsit on a joint note given by defendants, for fifty dollars and interest, dated September 17,1832, and made payable one year from January, next after the date. On the trial of the issue, defendants gave evidence, tending to prove, that said note was given — not to the plaintiff — but to one Ebenezer Broughton, and that the said Ebenezer Broughton died at Fort Anne, in the State of New York, before the commencement of this action.
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This was an action of assumpsit on a joint note given by defendants, for fifty dollars and interest, dated September 17,1832, and made payable one year from January, next after the date. On the trial of the issue, defendants gave evidence, tending to prove, that said note was given — not to the plaintiff — but to one Ebenezer Broughton, and that the said Ebenezer Broughton died at Fort Anne, in the State of New York, before the commencement of this action. The plaintiff then offered evidence, tending to prove, that defendant, William Fuller, Jr, in March, 1833, consented to the said Ebenezer…
1Opinion of the Court
The opinion of the court was delivered by
Redeield, J.
At common law, the plaintiff, in an action ex contractu, must make his case against all the defendants sued, or he could not recover against any. But, by a recent statute of this State, the plaintiff, even in actions ex contractu,, may recover against any number of defendants, less than the whole number, and the others, recover their costs. So that, now, the joining too many defendants, is no ground of abatement even, much less of non-suit or error. And by the same statute, if too few defendants be joined, the others may be cited. This is…
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