Brown v. Wentworth

46 N.H. 490

Opinion

Bartlett, J.

In this action none of the plaintiffs stand in the position of assignors or trustees, but each "has an equal interest in the claim in suit, and maintains the action, if at all, in his own right and for his own benefit,” and "each has an equal right to control the suit and there is no evidence of "any fraudulent or covinous contrivance to defeat the action.” The case of Caverly v. Jones, 23 N. H. 578, must, therefore, be decisive here; and as four of the five co-plaintiffs show to the court that the action was brought without their consent, knowledge or authority, and request to be nonsuited, a nonsuit must be entered as to all the plaintiffs. It does not appear that any application to these four plaintiffs to permit their names to be used in the action, or any offer of indemnity to them had ever been made by Brown. until after they had presented their petition to the court; and we do not see how this offer of such indemnity as the court may order can in law stand any better than the proposition of the counsel for the twenty-nine plaintiffs in Caverly v. Jones, 23 N. H. 575, that "the action be suffered to proceed,” the other three plaintiffs "being indemnified against costs.” In the present case it is unnecessary to decide whether to the ordinary rule there may not exist exceptions, where, from the necessity or peculiar circumstances of the case, a prior request or notice and offer of indemnity should not be required or held essential to the proper commencement of the action, as here no facts are stated to take the case out of the ordinary rule.

There must, therefore, be

A nonsuit.