Erwin v. Devine

• Decision Date: 14 April 1829
• Citation: Erwin v. Devine, 24 Ky. 204 (Ky. Ct. App. 1829)
• Parties: Erwin v. Devine.
• Court: Kentucky Court of Appeals

24 Ky. 204

Erwin v. Devine.

Court of Appeals of Kentucky.

April 14, 1829

Misjoinder. Liability. Joint. Several. Verdict. Non-suit. Allegation. Proof.

ERROR TO MONTGOMERY CIRCUIT; SILAS W. ROBBINS, JUDGE.

Crittenden and Triplett, for plaintiff.

Daniel for defendant.

OPINION

UNDERWOOD JUDGE:

Devine brought an action of assumpsit against the plaintiff in error and seven others, to recover their rateable proportions of $100, which he alleged he had expended for their use. The declaration so far as it sets out a cause of action against the defendants, for their rateable proportions of $100, is clearly defective, for it proceeds against the defendants jointly, for what is clearly a separate liability. This defect was by an amendment of the declaration attempted to be cured. The amendment avers that Devine, at the request of the defendants, laid out and expended $100 for their use and benefit, thus charging a joint liability on the defendants for the whole sum. On the trial, the jury found a verdict against the plaintiff in error, for $33 in damages, and found in favor of all the other defendants. This verdict can not be sustained. Devine, by amending his declaration, placed his right to recover upon a joint undertaking of all the defendants, and unless he proved a joint assumpsit, the court should have instructed the jury to find, as in case of a non-suit, on the application of the defendants. See 1 Chitty 31, for the...