Ela v. Rand

4 N.H. 307

Opinion

Richardson, C. J.

It is a well settled principle of law that when an action is brought against one partner in a partnership account, he may plead in abatement of the writ that the contract was made by him jointly with another partner who is still alive and not named in the writ. 1 Saund. 291, note 4; 18 Johns. 459, Robertson v. Smith; 5 Burr. 2611, Rice v. Shute.

It has been said to be just, that it should be so. If the defendant calls upon the plaintiff to make all the rest defendants he shall be obliged to do it, that all may assist in the defence, that all may enter into a rateable contribution to pay what shall be recovered, and to take away all colour and pretence of collusion. 2 W. Bl. 949; 2 New R. 371.

But when a defendant pleads in abatement of the writ the omission of a party who ought to have been joined, he is bound to plead the whole truth of the case and give the plaintiff a better writ. And if it turn out in evidence that there are others not named in the plea who ought also to have been joined, the plea is disproved. 2 W. Bl. 951; 6 Taunt. 587, Godson v. Good; 1 Starkie 296, Pasmore v. Bousfield.

And in general, when a plaintiff sues a defendant with whom alone he believes he has contracted, but who in truth has a dormant partner, the defendant may plead in abatement, that his partner is not named in the writ. 5 Taunt. 609, Dubois v. Ludert.

In this case nothing is stated which can bring it within any exception to the general rule.

There are cases in which it may become a question whether the credit was given to the defendant alone or to him with his partners. 2 Starkie 555, Robey v. Haward. But in this case there is no pretence, that the credit was given to this defendant alone , for the contract was made with White and not with the defendant, who was himself a secret partner.

We are therefore of opinion that the jury were misdirected and that there must be

JL neto trial granted.