Winslow v. Merrill

Mellen C. J.

It appears to be settled law that in case of a joint contract all must be joined as defendants ; but if the contractors are not all joined, advantage can be taken by plea in abatement only, if all are living when the action is commenced. Rice v. Shute, 5 Bur. 2611 ; 1 Chit. Plead. 29 ; 1 Saund. 284, note 4; Zeile & al. v. Campbell’s ex., 2 Johns. Cases, 382; Harwood v. Roberts, 5 Greenl. 441. It seems also to be well settled that in actions on contract, new plaintiffs or new defendants can never be added by way of amendment, unless by the express consent of parties ; though in other actions for torts a defendant may be struck out. Redington v. Farrar & al. 5 Greenl. 379. We have no doubt the ruling of the Judge was correct in refusing leave to amend, by inserting the name of Andrew Scott, as a co-defendant ; and according to the authorities, we are equally clear that the objection to the maintenance of the action, on account of the non-joinder of Scott, ought to have been overruled also, inasmuch as there was no plea in abatement, and the trial was on the general issue. We must sustain the exceptions. The non-suit is set aside and the action stands for trial in this Court.