Espino vs. Nash & Manchester.
Where one of two defendants demurs to the declaration, and the other pleads the general issue, the plaintiff, at any time before his default for not joining in demurrer is entered, may amend as to both defendants under the 23d general rule, notwithstanding more than twenty days have elapsed since the service of the plea.
Amendment. The defendants were sued as partners. On the 22d of August last Manchester pleaded the general issue, and on the 28th of the same month Nash demurred to the declaration. Before the time for joining in demurrer had expired, but after the lapse of more than twenty days from the service of the plea, the plaintiff amended his declaration, and served a copy on each of the defendants. Nash demurred again; and now
N.Hill, Jr., on behalf of Manchester,
moved to set aside the amended declaration for irregularity; insisting that, as more than twenty days had elapsed after the service of the plea, the plaintiff could not amend of course under the 23d rule.
J), Greig, for the plaintiff.
By the Court,
As a default for not joining in demurrer had not been entered, the plaintiff had a clear right to amend as against the defendant Nash; and as he could not exercise that right without affecting both of the defendants, I think Manchester as well as Nash must answer the amended declaration. (Thomas v. Allen, 2 Wend. 618.)