Flanders v. White Mountains Bank , 43 N.H. 383 ( 1861 )

Bell, C. J.

Exception was taken to the order of court allowing the amendment of the declaration, by striking out the name of one of the defendants; but no exception was taken to the rendition of the judgment against two only of the defendants.

The power of the court to order the amendment under the statute is clear. “In all actions, where there are two or more defendants, the plaintiff may amend the writ, before the evidence is closed, by striking out the names of one or more of the defendants, on paying them their costs up to that time.” Rev. Stat., ch. 186, sec. 19.

To give effect to this statute, it must, we think, be held, that the plaintiff may recover against the remaining defendants, upon the same cause of action originally declared upon.

In Peebles v. Rand, 43 N. H. 337, it was held, that it will not be presumed that a judgment was improperly rendered against one or more of several defendants, since there are cases even at common law where such a judgment would be proper; and that where a party was present in court, when a judgment was wrongfully rendered against him, and had opportunity to correct the error by exception, according to the course prescribed by the statute of 1855, and he neglected to take his exception, he is held to have waived it, and can not maintain a writ of error. That decision is conclusive in this case; and judgment must be entered for the defendants.