Peebles v. Rand
Supreme Court of New Hampshire
In Error. By the copy of the record attached to the writ of error, it appears the defendants in error brought their action of assumpsit upon an account annexed, against Peebles, Deming and Tewksbury.
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In Error. By the copy of the record attached to the writ of error, it appears the defendants in error brought their action of assumpsit upon an account annexed, against Peebles, Deming and Tewksbury. The case was tried by the court upon the general issue, and the finding of the court was, “And the court do find that the said Tewksbury be discharged, and that the said Peebles and Deming did promise in manner and form as the plaintiffs have declared against them; and assess damages in the sum of sixteen dollars and forty-eight cents.” It is therefore considered, &c., that the plaintiffs recover…
1Opinion of the Court
Bell, C. J.,
In a joint action in form ex contractu, judgment can not in general be given against one defendant without the other. 1 Chit. Pl. 31, and cases cited. The plaintiff must show a joint subsisting liability of all the defendants, or he can not recover against either. Tuttle v. Cooper, 10 Pick. 281; Livingston v. Tremper, 11 Johns. 101; Town v. Goodrich, 2 Johns. 213; Wolcott v. Canfield, 3 Cow. 194. And where the plaintiff discontinues, or enters a nol. pros, against one, he can not have judgment against the other or others, by default, or verdict. Hall v. Rochester, 3 Cow. 374.
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2Cases cited8 opinions
- Robertson v. SmithNew York Supreme Court · 1821
- Hartness v. ThompsonNew York Supreme Court · 1809
- Bissell v. HopkinsNew York Supreme Court · 1824
- Tharp v. Tharp's admr.Court of Appeals of Kentucky · 1860
- Jarvis v. BlanchardMassachusetts Supreme Judicial Court · 1809
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3Cited by3 opinions
- Barton v. City of ManchesterSupreme Court of New Hampshire · 1970
- State v. ThorpSupreme Court of New Hampshire · 1934
- Storch Engineers v. D&K Land DevelopersSupreme Court of New Hampshire · 1991