Wheeler v. Thom

Richardson, C. J. If there is in this case a misjoihder of counts, the consequences for which the counsel of the defendants contend, must follow. The declaration must be adjudged insufficient even on a general demurrer. 1 Hen. Black. 108, Rose vs. Bowler.—2 Bos. & Pull. 424, Brigdon vs. Parkes et a.—4 D. & E. 347, Jennings vs. Newman. But we have attentively examined this case without being able to conjecture any good reason, why the several counts n the declaration should not be joined. It has been said, 398 that the defendants cannot plead the same plea to all these counts ; that to the fourth count they must plead that they never promised, and to the three first counts, that they, with W. S. Therm, did not promise ; and a remark of Parsons, C. J.j in Tappan vs. Bruen.(1) is relied upon as an authority. It is undoubtedly true, that when two are sued upon a promise made by them and another, they may plead that they did not promise with the other ; but we apprehend that it is equally true, that in such a case they may plead, that they never promised in manner and form, and that this plea will be of precisely the same import as a plea that they, with the other, did not promise. (1) 5 Mass. Rep. 190. (2) 1 Chitt. PI. 37.— 2 ditto'47. (3) 1 d. & E. 493, Slipper vs. Stidstone. .. Chi tty says, that in an action against a survivor, a demand may be included, though it became due from him since the death of his partner.(2) And it is well settled, that when the survivor is sued for his own separate debt he may set off a demand due to him as surviving partner,(3) where , , . . , . , , , , , the court say, “ the defendant might nave declared against “ the plaintiff for this demand, and also for a sum due to “ him separately, if any such had been due, and that, there- « fore, there was no reason why the set-off should not be “ allowed.” 6 D. & E. 582, French vs. Andrade.—1 Barn. & Ald. 29, Richards et a. vs. Heather. There does not seem to be, however, any case in the books in which this point has been directly decided ; probably, because no doubt was ever before entertained on the subject. We are clearly of opinion, that the several counts in this declaration were correctly joined, and that the plaintiff is entitled to judgment.