Wilson v. Gamble
Superior Court of New Hampshire
Thespass quare clausum fregit. The defendant pleaded the general issue, and filed a brief statement, setting forth that one James Emerson was tenant, in common with the plaintiff, of the close described in the declaration, when the trespasses complained of were committed, and that, after the commencement of the action, said Emerson released to the defendant said trespasses.
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Thespass quare clausum fregit. The defendant pleaded the general issue, and filed a brief statement, setting forth that one James Emerson was tenant, in common with the plaintiff, of the close described in the declaration, when the trespasses complained of were committed, and that, after the commencement of the action, said Emerson released to the defendant said trespasses. It appeared in evidence, on the trial, that said Emerson was tenant, in common with the plaintiff, of said close, as set forth, and that he cut wood and timber thereon at the same time • and the defendant offered in…
1Opinion of the CourtGreen, J.
The general rule is, that tenants in common should join in personal actions. 3 Bac. Abr., Joint Tenants, K.; Co. Bit. 198.
In actions in form ex delicto, if a party who ought to join be omitted, the objection can only be taken by plea in abatement, or by way of apportionment of the damages on trial. 1 Chitty's Plead. 53.
Where several join in a personal action to charge a defendant, the release of one is a bar to all. 3 N. H. R. 96, 106.
*76In this case, one tenant in common brings his suit to recover his portion of the damages sustained. There is no plea in abatement, and the release of the other…
2Cited by2 opinions
- Campbell v. WallaceSuperior Court of New Hampshire · 1841
- Moulton v. RobinsonSuperior Court of New Hampshire · 1853