President of Claremont Bank v. Wood

The opinion of the court was delivered by Bennett, J. — This case comes before the court upon a demurrer to the plaintiffs’ declaration. In the first count, they declare against Wood, Hough, Wheelock and Judd, upon a note executed by the four, and in the second and third counts, upon notes executed only by three of the same persons, and we think it is quite clear that such counts cannot be joined in the same declaration. Courts cannot take jurisdiction of distinct and separate claims against different persons, in the same suit. It would lead to great confusion in the rights of individuals, as well as in the trial of causes, if such was the law. The fact that a non est inventus was returned as to Hough, can make no difference in the application of the principle. Though the allowance of the amendment to the plaintiffs’ original declaration, seems somewhat incongruous, yet, when the new counts were added, by way of amendment, they relate back to the commencement of the suit, and the question must stand upon the same ground as if the declaration had originally issued with the three counts. When a suit is commenced upon a joint contract against two or more, and a non est inventus is returned as to one of them, this cannot have the effect to change the character of the trial or the rules of evidence. It is manifest these counts cannot be tried together, and, for this misjoinder, the declaration must be held insufficient. The judgment of the county court is therefore affirmed. After the judgment of the court was pronounced, on motion, the judgment of the county court was reversed, pro for-ma, and the plaintiffs had liberty to amend their declaration.