Winslow v. Merrill
Supreme Judicial Court of Maine
Assumpsit against Seward Merrill and Charles Merrill on a promissory note. Plea, the general issue. The note produced on trial, was signed S. &f C. Merrill fy Co. and it was admitted, that the firm was composed of the two Merrills and Andrew Scott. The defendant thereupon moved a nonsuit, the evidence not supporting the declaration. And the plaintiff moved for leave to amend his writ, so that it should correspond with the note.
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Assumpsit against Seward Merrill and Charles Merrill on a promissory note. Plea, the general issue. The note produced on trial, was signed S. &f C. Merrill fy Co. and it was admitted, that the firm was composed of the two Merrills and Andrew Scott. The defendant thereupon moved a nonsuit, the evidence not supporting the declaration. And the plaintiff moved for leave to amend his writ, so that it should correspond with the note. But Whitman C. J. in the C. C. Pleas, refused the amendment, and ordered a nonsuit, whereupon exceptions were taken and the case brought up to this Court.
1Opinion of the Court
Mellen C. J.
It appears to be settled law that in case of a joint contract all must be joined as defendants ; but if the contractors are not all joined, advantage can be taken by plea in abatement only, if all are living when the action is commenced. Rice v. Shute, 5 Bur. 2611 ; 1 Chit. Plead. 29 ; 1 Saund. 284, note 4; Zeile & al. v. Campbell’s ex., 2 Johns. Cases, 382; Harwood v. Roberts, 5 Greenl. 441. It seems also to be well settled that in actions on contract, new plaintiffs or new defendants can never be added by way of amendment, unless by the express consent of parties ; though in…
2Cited by1 opinion
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