
    Winslow vs. Merrill & al.
    
    S. and C. were sued on a promissory note made by S. C. & Co. Held) that the error could only be taken advantage of by pica in abatement.
    
    In actions on contract, new plaintiffs or new defendants, can never be added by way of amendment.
    
    Assumpsit against Seward Merrill and Charles Merrill on a promissory note. Plea, the general issue. The note produced on trial, was signed S. &f C. Merrill fy Co. and it was admitted, that the firm was composed of the two Merrills and Andrew Scott. The defendant thereupon moved a nonsuit, the evidence not supporting the declaration. And the plaintiff moved for leave to amend his writ, so that it should correspond with the note. But Whitman C. J. in the C. C. Pleas, refused the amendment, and ordered a nonsuit, whereupon exceptions were taken and the case brought up to this Court.
    And now it was submitted without argument, by Longfellow, for the plaintiff, and Megquier, for the defendant.
   Mellen C. J.

It appears to be settled law that in case of a joint contract all must be joined as defendants ; but if the contractors are not all joined, advantage can be taken by plea in abatement only, if all are living when the action is commenced. Rice v. Shute, 5 Bur. 2611 ; 1 Chit. Plead. 29 ; 1 Saund. 284, note 4; Zeile & al. v. Campbell’s ex., 2 Johns. Cases, 382; Harwood v. Roberts, 5 Greenl. 441. It seems also to be well settled that in actions on contract, new plaintiffs or new defendants can never be added by way of amendment, unless by the express consent of parties ; though in other actions for torts a defendant may be struck out. Redington v. Farrar & al. 5 Greenl. 379. We have no doubt the ruling of the Judge was correct in refusing leave to amend, by inserting the name of Andrew Scott, as a co-defendant ; and according to the authorities, we are equally clear that the objection to the maintenance of the action, on account of the non-joinder of Scott, ought to have been overruled also, inasmuch as there was no plea in abatement, and the trial was on the general issue. We must sustain the exceptions. The non-suit is set aside and the action stands for trial in this Court.  