Scott v. Shears

in a suit against one, proof may be given of a debt due from him and another jointly.

This was an action of assumpsit, brought by the plaintiff in the court of common pleas, to recover of the defendant the value of work and labor done and performed by the plaintiff for the defendant, as stated in the plaintiff’s bill of particulars. The case was referred to an auditor. At the hearing before the auditor, the plaintiff offered his book with his oath, to support his bill of particulars. Upon inspection of the book, it appeared that the charges which the plaintiff proposed to prove in support of his bill of particulars, were there charged against- Samuel Shears 2d, the defendant, and Charles Graves, jointly; and, therefore, the defendant objected to the introduction of that evidence, as not being competent in any particular to support the plaintiff’s bill of particulars; and the auditor, being of that opinion, rejected the evidence, but submitted the matter to the court. The auditor found that, if his ruling was right, the plaintiff could not recover; but if the evidence was competent, and should have been received, then the plaintiff would be entitled to recover the balance charged in bis bill of particulars, namely, $83.20. At the trial, the presiding judge, Byington, J., ruled that the evidence was competent, and should have been received. Thereupon, the defendant submitted to a default, and judgment was entered for the plaintiff upon the auditor’s report; and the defendant brought the case to this court by exceptions. Neither the writ, nor bill of particulars, nor any thing in the case, gave any notice that the plaintiff was seeking to recover for work done for the defendant and Graves. Therefore the defendant could not plead the non-joinder of Graves, as he had no knowledge that that was the claim sued until the evidence was offered before the auditor. In all the cases cited by the plaintiff, showing that the defendant’s only remedy was by a plea in abatement, it clearly appears that the action was brought to recover a joint claim against the defendant and others. cited Wilson v. Nevers, 20 Pick. 20; Rev. Sts. c. 100, §§ 1, 21; Rice v. Sfiute, 5 Burr. 2811 ; 1 Chitty PI. 52.