Majority
p. 618Thomas vs. Allen and German.
Headnote
in a case of two defendants, where gene'ra^issue and the other demurs, and the declaration is subsequently amended, both defendants are bound to receive an amended declaration.Amended declaration. The defendants appeared by sep- .... , „ . r orate attormes, on each or whom a copy of the declaration was serve<^- The attorney for Allen plead the general issue. The attorney for German demurred, and the plaintiff neglect- ...... ... mg to join m demurrer, a default was entered against him,
p. 619
which, on his motion, was set aside at the last February term, and leave given to amend. On the 10th June last an amended declaration was filed and served on the attorney of German, and a copy delivered to the attorney of Allen, to whom the plaintiff’s attorney tendered the costs of the plea put in to the first declaration. The attorney of Allen refused to receive the amended declaration, and threatened to give notice for judgment as in case of nonsuit for not proceeding to trial upon the issue already joined. The plaintiff now moved that the attorney of Allen receive the amended declaration and plead thereto in the usual time.
J. Watson, for plaintiff.
D. B. Cady, for defendant.
The rule permitting the plaintiff to amend his declaration necessarily affected both defendants. The declaration having been amended in consequence of a demurrer by one defendant, it of course was an amendment as to the other. The plaintiff has done all that could be required of him, and he is entitled to his rule without costs, however, to either party, of this motion.