Majority
p. 145Chamberlin vs. Noyes.
Headnote
A plaintiff will not be allowed to amend by adding .a deféndant, after plea in abatement founded upon the non-joinder, except within the time and under the limitations prescribed by the 96th rule.Amendment. To a declaration against one of two partners on a note made by the firm, the defendant pleaded the non-joinder of his copartner in abatement. The plaintiff replied the discharge of such copartner under the bankrupt law, and the defendant demurred to the replication. After the lapse of more than twenty days from the time when the plea in abatement was put in,
A. Taber, for the plaintiff,
moved for leave to amend by making the partner not joined a co-defendant
N Hill, Jun, contra.
said that a plaintiff desiring to amend by adding a defendant, after a plea in abatement has been interposed founded upon the non-joinder, must comply strictly with the provisions of the 96th rule. (Rules of Sup. Court, 1837, p. 43.)[1]
Motion denied.[2]
(a) (a) а) This rule was abolished by the revision of 1845. (See Rules of Sup. Court, 1845.)
(b) (b) Amendments of this nature are not allowed in England even to save the plaintiff’s demand from the operation of the statute of limitations. (Roberts v. Bate, 6 Adol. & Ellis, 778.)