Beasley v. Allan ( 1857 )

By the Court. —

Lumpkin, J.

delivering the opinion.

We are inclined to think that the writ in this case was properly brought and served; and that whether it was or was not, the common law rule, that the non-joinder of Thompson Allan as a separate contractor, (if indeed he were such) should have been taken advantage of by demurrer to £he declaration or by plea in abatement. For by the Act of 1850, (Cobb 493,) it is provided that when any two or more persons sue or are sued in the same action, and the name of any person who ought to be joined in such action as plaintiff or defendant is omitted; on ascertaining the same, the «mission shall be amended instanter.

In this case, a copy of the note was set out; and while we «an see no reason why Thompson Allan should have been charged doubly; still, if the legal import or effect of the contract made it necessary, the objection because of the omission, should have been taken at the proper time, and in the proper way. For then the defect could have been cured without cost or delay. It consequently comes too late after verdict, which cures all amendable defects; (3 Kelly 81); and of course this omission under the statute to which we •have referred.

Judgment reversed.