3 Bac. Abr. 620. Dean v. Guyse. 3 Bac. Abr. 621. Harding v. Salkill. I Esp. Dig. 298. Fooler v. Cooke. Salk. 297. 1 Esp. Dig. 298. 1 Esp. Dig. 299. VIII. Of abatement by reason of misnomer, or omission, of such additions as are only inducements to the action. When any particular character or relation gives any person rights and privileges, or makes him subject to any burthen; to demand the one, or be liable to the other, the particular character or relation ought to be set forth; for, since it is the cause of the action, it must certainly be material; and therefore when persons sue or are sued, as heirs, executors, or administrators, they must be named as such, for these are necessary conveyances or inducements to the action, which, if mistaken, are fatal. If this inducement be not at first in a declaration, yet, if it afterwards appears that the party is charged as executor, this is sufficient. As if an action of covenant be brought against I S, executor, and he is not at first named I S, executor of the last will and testament; but afterwards it is shewn, that the testator did covenant and bind himself, his executors, &c. and made IS his executor, and died; and a breach is assigned; this is sufficient, without a formal nomination, If an action is brought against a person as executor, and he pleads, that he is not executor, but administrator, it must be pleaded in abatement, and not in bar ; for a recovery against one, as executor, is a good bar to another action for the same cause against him as administrator. And where defendant does so plead that he is administrator, in abatement, he need not traverse, that he ever intermeddled as executor, which he might have done, and so have been executor of his own wrong. For it shall not be intended that he did so, as all acts are presumed to be lawful, till the contrary appears. For if in fact the defendant was executor of his own wrong, plaintiff might reply it; and besides, defendant need only traverse that which plaintiff has alleged in his declaration. But if defendant is sued as administrator of I S and pleads that he is executor, then defendant must go on and traverse," without this that I S died intestate ;" and the reason is, that unless there was a dying intestate, no action can be brought against one as administrator, and to say that he was executor, is, by implication, only an answer to the dying intestate. IX. Of abatement by reason of the want of proper harties. The want of proper parties is also a good plea in abatement, as that there are other persons, not named, who ought to be made co-plaintiffs or co-defendants. As where there is a partnership demand, all the partners should join in the action, for the contract and undertaking is joint; and if, in such case, one partner only brings the action, defendant may take advantage of it at the trial, and non-suit the plaintiff; for the contract is not the same. But in case of a tort, this must be pleaded in abatement. But if an action of assumpsit is brought against one partner, without joining the other, defendant must take advantage of it by pleading that matter in abatement ; for if he was allowed to give it in evidence, and so non-suit the plaintiff, it would be endless litigation, unless plaintiff knew all the partners. But when defendant pleads in abatement, he sets out all his partners, and the plaintiff knows against whom to proceed. For all contracts with partners are joint and several, and every partner is liable to pay the whole; and in what proportion the others are to contribute is a matter merely among themselves; plaintiff may however bring his action against one, but that one may, by plea in abatement, compel plaintiff to join them all and if he brings his action against all, yet he may take out execution against one only. But if one partner is, out of the state, and not amenable to the process of the court, defendant may proceed singly against the other. If the cause of action arise ex contractu, the plaintiff Mitchell v. Tarbutt. must sue all the contracting parties; if ex delicto, he may 5 T. R. 649. sue all, or any one. And the same rule applies, where a tort is committed by a servant of the defendant sued. Therefore, to an action on the case against several partners Gilbert v. Bath. 1 Esp. Dig. 284. Co. Litt. 282. A. 1 Esp. Dig. 284. Hollingsworth v. Ascue, Cro Eliz. 355. 1 Esp. Dig. 284. Spencer v. Durant. 1 Esp. Dig. 285. Cro. Eliz. 202. 1 Esp. Dig. 285. 2 Stra. 1146. Bull. N. P. 158. I Esp. Dig. 371. 2 Salk. 440. 2 Esp. Dig. 402. 5 Burr. 2611. 2 Esp. Dig. 402. for negligence in their servant, whereby the plaintiff's goods were lost, it cannot be pleaded in abatement, that there are other partners not named. If two are bound jointly in a bond, and one only is sued, the other must take advantage of it by pleading in abatement; for if he demand oyer and demurs, plaintiff shall have judgment, for the Court will presume that the other never sealed it. And in such case, where one only is sued, he cannot plead, non est factum; for it is his deed, though not his sole deed. And therefore where defendant does so plead this matter in abatement, "that another was bound with him," he must plead further, "that the other did seal and deliver it as his deed," or the plea will be bad; for by such means only is the deed good; and, without such averment, the Court will presume that the other never did seal it. If a bond be made to several, they must all join in the action, for their interest is joint, and they cannot have several actions. The bond, in this case, was to the plaintiff, and another, and to each of them, that is, joint and several. But if the bond be so, and one only brings the action, defendant must take advantage of it by pleading in abatement; for if he pleads it in bar, is is bad, and plaintiff shall have judgment. So also, where there is a joint covenant by several, all should join in the action, or on demurrer on oyer it will be bad. But if any, named in an indenture, have not sealed it, they should be excluded by an averment to that effect. But advantage must be taken by pleading in abatement, if the action be brought against part only of the covenantors. So where goods are lost, which have been put on board a ship, and an action is brought against the owners of the ship, in such case the owners should all be joined in the action; for it is quasi ex contractu as to all. Though if one only be sued, he must plead it it abatement that there are other partners, for he shall not be allowed to give it in evidence, and nonsuit the plaintiff. 4 3 Bac. Abr. 215. At common law, joint-tenants, in actions both real and Co. Litt. 180. b. personal, must jointly sue and be jointly sued. It is however otherwise in the case of tenants in common, who need only join and be joined in personal actions. 3 Bac. Abr. 216. Mass. Stat. March 9, And now in regard to co-heirs and joint-tenants, it is enacted by statute, that in actions of waste, ejectment, or 1786, at 2, sec. 3. other real actions, where possession of the inheritance, alleged to have descended, is the object of the suit, they may all, or any two, or more of them, join therein, or each one may prosecute for his particular share of such inheritance; and the same rule shall extend to joint-tenants, who are, or may be, disseized. Co. Litt. 198. a. But tenants in common must join in actions personal, as trespass in breaking into their house, destroying their 3 Bac. Abr. 216. grass, cutting their timber, &c. and shall recover their damages jointly; because in those actions, though their estates are several, yet the damages survive to all; and it would be unreasonable to bring several actions for one single trespass. Salk. 4. If defendant be tenant in common with plaintiff, he may give this matter in evidence under the general issue; for, Litt. Sec. 323. 2 Esp. Dig. 103. at common law, one tenant in common cannot have trespass against another. 1 But by statute, tenants in common, joint-tenants, and co-parceners, may have reciprocal actions of waste against Mass. Stat. March 9, 1786, at 2, sec.1, 2. each other for committing depredations upon the ore or timber appertaining to the land thus held in common. So if one tenant in common destroys the thing held in common, the other may have trover against him for it ; for that is a total conversion to his own use of what he had only a part. As where one part owner of a ship took her and sent her to the West Indies, where she was lost, and the other owners bringing an action for it, Ld. King left it to the jury, whether, they being tenants in common of the ship, this was not a destruction by the defendant, and the jury found accordingly, Co. Litt. 200. a. 2 Esp. Dig. 348. Bull. N P. 34. 2 Esp. Dig. 103. Sedgworth v. Overend, 7 T. R. 279. If plaintiff be tenant in common with another person, defendant must plead this in abatement. So joint-tenancy should be pleaded in abatement, and cannot be given in evidence, on the general issue. If one of two part owners of a chattel sues alone for a See 2 Mass. T. R. 509. tort, and the defendant do not plead in abatement, the other part owner may afterwards sue alone, and the defendant cannot plead in abatement to such action. Hart v. Fitzgerald. 2 Mass. T. R. 509. 3 Bl. Com. 302. In replevin, where, from the declaration, it appeared that the plaintiff was but part owner of the property replevied, the Court, ex officio, abated the writ. X. Of abatement by reason of the death of either of the parties. By the laws of England, the death of either party, pending the suit, is at once an abatement of it. But in this commonwealth, there is a statute, which enacts, that in case of the death of any party, either the Mass. Stat. March 4, appellant or appellee, before the sitting of the court ap 1784, sect. 10. Where a party dies, case the cause of ac ecutor or administra tor may come in, and profecute or defend the same. pealed unto; or where any action or suit is or shall be depending, either in the Court of Common Pleas, or in the Supreme Judicial Court, in any county of this commonpending a suit, (in Wealth, and it so happen that either party be taken away tion s. rvives) the ex- by death before final judgment, the executor or administrator of such deceased party, who was plaintiff, complainant, or defendant, (in case the cause of action doth by law survive) shall have full power to prosecute or defend any such suit or action, from court to court, until final judgment; and the defendants or appellees are obliged to answer to such suits accordingly; and the Justices of the Common Pleas and Supreme Judicial Court, before whom such causes may be triable and depending, are empowered to hear all such causes, proceed to judgment, and award execution accordingly. Mass. Stat. March 17, It is also enacted by a subsequent statute, that in all ac1804, act 3, sect. 1. tions pending in the Supreme Judicial Court, or in any Where a party dies, Court of Common Pleas in this commonwealth, by appeal, his executor or ad- continuance, or otherwise, and the plaintiff or defendant, pending a suit, and ministrator neglects to become a party to appellant or appellee, complainant or respondent, shall die |