Bliss v. Bliss

Shaw, C. J.

The rule is well settled, that in the action of assumpsit, nonjoinder of defendants can be taken advantage of by plea in abatement, and in that way only. 1 Saund. 291, c. note. Lawes PI. in Assump. 108. This rule is not altered by the Rev. Sts. c. 100, which authorize an amendment by striking out defendants. Whenever, by such amendment, the suit is subject to abatement, the defendant has a right to plead in abatement, though after the first term. Rathbone v. Rathbone, 4 Pick. 89. Robbins v. Hill, 12 Pick. 569. The present defendant, if he wished to avail himself of the nonjoinder of his co-contractors, after their names were stricken out of the writ and declaration, should have pleaded in abatement.

Exceptions overruled.