Carter, Rice & Co. v. Hosford

The opinion of the court was delivered by Barrett, J. The right to recover for the note of $500 on the original declaration is virtually conceded in this court. The amendment, therefore, is to be considered only with reference to the residue of the plaintiffs’ claim. That amendment is to be considered in this regard only as it stands related to the right of the plaintiffs to maintain this action of assumpsit against the defendant severally, *on the cause of action shown by the case. While the promise is joint by the three named in the amended count, still, each was under obligation to the plaintiffs for the whole claim. At'common law, the objection to recovering in a suit against one alone, is purely technical, and can be asserted only by plea in abatement for the non-joinder of the other joint promisors. There was no such plea in this case. It may be questioned, therefore, whether there was any need of the amendment in order to entitle the plaintiffs to recover for their claim. How.ever that may be, our statute, c. 30, s. 74, specially provides for such a case, to the intent that a suit may be maintained against such of joint contractors as reside within the state, where the others of them reside out of it. The purpose of the new count seems to be to show a case within that provision of the statute. It does not import a cause of action different from that for which the original declaration was in fact made; because, as before stated, under that declaration, without the help of the statute, the plaintiffs might have judgment for their claim in case they should not be obstructed by a plea in abatement for non-joinder. The amendment sets forth the joint promise, with the circumstantial incidents that entitle them to bring and maintain this suit against the defendant alone, without peril of obstruction by such plea in abatement. In doing this, no new parties to the suit are intro [436] duced, nor is any new cause of action set forth. It is only being more specific in setting forth the cause that entitles the plaintiffs to maintain this suit against the defendant alone. No other subject bemg brought in question in this court, the judgment is affirmed.