Southard v. Hill

Goodenow, J. This is an action of trespass. The defendant pleads in abatement, the nonjoinder of certain other persons, named in his plea, as to the second, third and fourth counts of the writ, and takes no notice of the first count; and, in conclusion, prays judgment of said writ, and that it may be quashed, and for his costs. To this plea there is a demurrer and joinder. It is undoubtedly true, that there is a settled distinction between mere personal actions of tort, and such as concern real property; and that, if one tenant in common only be sued in trespass, trover or case, for anything respecting the land held in common, he may plead the tenancy in common in abatement. It is also true, that as pleas in abatement delay the trial of the merits of the action, the greatest accuracy and precision are required in framing them. A dam is not necessarily real estate. If built by one person, on the land of another, with his consent, it would be personal estate. The plea in this case does not aver that the dam was real estate. It is not therefore certain to every intent. The defendant is not at liberty in pleading to leave the question in doubt, whether the dam was or was not real estate ,* with an expectation that the plaintiff might open the way to remove that doubt, by a replication instead of a demurrer to the plea. And even if it could be reasonably inferred from what is before us, that the dam spoken of in the plea is real estate, we are not informed whether the trespass complained of by the plaintiff arose from acts of malfeasance, or from mere omission to perform a duty, or nonfeasance. We think there is good reason for the distinction in this respect, adverted to in Low v. Mumford, 14 Johns. R., 426. One reason why the plaintiff in an action ex delictu, should [97] not be required to include all the tort-feasors, is, that he may not know them, or be able to find jiroof against them. But where the gist of the action is that the defendants are proprietors of the land, and have neglected a duty incident to their title, it is otherwise. Wo are not assured by what has been legally presented to us by the pleadings in this case, that the title to the land on which the dam is erected, does come directly in question. Mr. Chitty says, vol. 1, p. 451, that many of the decisions in the books as to the form of the plea, are no longer applicable, and now in general a plea in abatement of the writ may be both of the writ and declaration, and it must be so where it is intended to plead in abatement only of a pari of the writ, and the cause of abatement arises only on some of the counts in the declaration. The insurmountable objection is, therefore, not so much to the form as to the substance of tiie plea. The plea in abatement is overruled. Judgment, that the defendant answer over.