Scott v. Brown
| Decision Date | 31 August 1856 |
| Citation | 3 Jones 541,67 Am.Dec. 256,48 N.C. 541 |
| Court | North Carolina Supreme Court |
| Parties | GEORGE W. SCOTT v. MOSES L. BROWN. |
One of two persons jointly entitled to damages for a deceit in the sale of property, cannot release or assign his interest to the other so as to enable him to sue alone.
Of course, such joint-purchaser could not become a competent witness for his co-purchaser by means of such release.
In actions of tort arising ex contractu, a non-joinder of a party plaintiff may be taken advantage of by motion in arrest of judgment, or by a writ of error, or on the trial upon the general issue.
THIS was an ACTION for a DECEIT, in the sale of a jackass, tried before ELLIS, Judge, at the Spring Term, 1856, of Cabarrus Superior Court.
The plaintiff offered one Cyrus Scott to prove the contract of sale.
The defendant called testimony, and showed to the satisfaction of his Honor, that the proposed witness was a joint-purchaser of the property from Brown, and he was, therefore, pronounced incompetent. The witness then executed a release and delivered it to the plaintiff; but the defendant still opposed the admissibility of the witness, upon the ground that the objection went to the whole character of the action, and insisted that the witness ought to have been a party, and for not having been such, he moved that the plaintiff be nonsuited.
His Honor declined to order a nonsuit, but admitted the witness to be sworn; to which ruling the defendant excepted.
Verdict and judgment for the plaintiff. Appeal by the defendant.
No counsel appeared for the plaintiff.Boyden, for defendant .
The action is in tort, for a deceit in the sale of a jack. The plaintiff and his brother, Cyrus Scott, were the joint-purchasers of the jack. The action is brought by G. W. Scott alone. On the trial, the brother, Cyrus, was offered by him as a witness, and, upon objection, was set aside by the Court. Cyrus then executed a release to to the plaintiff of all his interest, and the Court held he was then a competent witness. In this there is error.
In all actions on contracts, all in whom the legal interest vests should, in general, be made parties plaintiff; and if any be omitted, whom the law requires to be joined, the defendant may take advantage of the omission on the trial, under the general issue, as the contract proved will not be the same declared on; or he may move in arrest of judgment, or proceed by writ of error if the defect appear on the record. In an action simply of tort, as in trespass to property, real or personal, the defendant must plead in abatement the nonjoinder of a part-owner, and cannot take advantage of the defect, by way of nonsuit on the trial; because one joint-owner may recover his aliquot portion of the damages sustained, if...
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