Wilson v. Gamble

Decided December 15, 1837

Superior Court of New Hampshire · decided 1837-12-15

Thespass quare clausum fregit. The defendant pleaded the general issue, and filed a brief statement, setting forth that one James Emerson was tenant, in common with the plaintiff, of the close described in the declaration, when the trespasses complained of were committed, and that, after the commencement of the action, said Emerson released to the defendant said trespasses.

Cited by 1 later decisions — most recently July 1860

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1837-12-15

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Green, J.

¶1The general rule is, that tenants in common should join in personal actions. 3 Bac. Abr., Joint Tenants, K.; Co. Bit. 198.

¶2In actions in form ex delicto, if a party who ought to join be omitted, the objection can only be taken by plea in abatement, or by way of apportionment of the damages on trial. 1 Chitty's Plead. 53.

¶3Where several join in a personal action to charge a defendant, the release of one is a bar to all. 3 N. H. R. 96, 106.

¶4 *76In this case, one tenant in common brings his suit to recover his portion of the damages sustained. There is no plea in abatement, and the release of the other tenant is no discharge, it not being a joint suit.

¶5The court was right in excluding the evidence, for any other purpose than assessing damages.

¶6Judgment on the verdict.