Majority
p. 417Palmer against Evertson.
Headnote
A plea in anon-joind’er"5 otb®rs as de* fendants, cannot be reeeiv®^ea aJte^ar ea g. the general issue.On certiorari to a Justice’s Court. The action was assumpsit in the Court below, by Palmer against Evertson. Plea, the general issue; and that the suit should have been brought against the defendant and others, as partners.
. . . , „ On trial, a verdict and judgment were given for the defendant; and one question here was, whether the non-joinder of others could be pleaded after the general issue.
L. Maison, for the plaintiff in error.
N. P. Tallmadge, contra.
It should have been pleaded in abatement, and consequently came too late after a plea of the general issue. (Per Kenyon, Ch. J. 6 T. R. 770. Laws on Pleading, 108. Cas. Temp. Hardw. 135. 1 Mass. Rep. 358 . 1 John. Cas. 101, 2.)
Judgment reversed.