Ziele v. Executors of Campbell

Kent, J. delivered the opinion of the court. This objection might have been good in a pl.ea of abatement, but is inadmissible, if raised at the trial, upon the general issue. The case of Rice v. Shute, (5 Burr. 2617,) and Abbot v. Smith, (2 Black. Rep. 947,) have solemnly and fully settled this point; and the principle, or ground of the decision in those cases, applies equally to this case, and to every other case where two or more defendants are responsible on a joint undertaking. “ It is convenient and just that the defendant should take advantage of this objection (if at all) at the beginning of the suit, and plead it in abatement; and he ought not to be permitted to lie by and put the plaintiff to the delay and expense of a trial, and then set up a plea not founded in the merits of the cause, but on the form of proceeding.” It is a principle of very ancient date in the common law, and has been applied to specialties, as well as to simple contracts. (See the cases cited by De Grey, Gh. J. 2 Black. Rep. 950.) The same point came into view and was sanctioned by the court of common pleas in the case of Scott v. Godwin, (1 Bos. & Pull. 66.) “ A writ,” says Lord Ch. J. Eyre, “shall abate, that has not made all the parties co-defendants, because the plaintiff may have a better writ in the same cause; but the action shall not be barred because the plaintiff has, in himself, an absolute right to sue the defendant. The defendant can only insist, if he pleases, that the plaintiffxVshall sue others with him, and this advantage he may waive, where the objection does not appear on the face of the record, and does waive, in that case, unless he plead in abatement.” In short, the rule applies to all joint contracts, as well as to those arising particularly from mercantile partnerships, *that if all who ought to be plaintiffs are not joined, it is ground for a nonsuit; if any are omitted as defendants, it is only in abatement [384] We are of opinion, therefore, that the judgment must be affirmed. Judgment affirmed.(a) Footnotes [a] (a) Stoney v. McNeill, Harper, 173. Horton v. Cook, 2 Watts, 40. Jordan v. Wilkins, 3 Wash. C. C. 110. Moore v. Russell, 2 Bibb, 443. 2 J. J. Marsh. 38. Wilson v. Wallace, 8 S. & R. 55. Geddis v. Hawk, 10 id. 33. Winslow v. Merrill, 2 Fairf. 127. Brown v. Warram, 3 Har. & J. 572. Powers v. Spear, 3 N. Hamp. 35. Robinson v. Robinson, 1 Fairf. 240. Robertson v. Smith, 18 Johns. R. 459. Williams v. Allen, 7 Cowen, 316. Camming v. Eden, 1 id. 70. Gay v. Carey, 9 id. 44. Coffee v. Eastland, Cooke, 159. - v. Kenon, 1 Hayw. 216. Barry v. Foyles, 1 Pet. 317. Mackall v. Roberts, 3 Monr. 130. Barstow v. Fossett, 11 Mass. 250. M’Arthur v. Ladd, 5 Ham. 517. Morgan v. Crimm, 1 Monr. 129. M’Call v. Price, 1 M’Cord, 82. Conley v. Good, 1 Breese, 96. Bradley v. Camp, Kirby, 106, Brown v. Belches, 1 Wash. 9. Barrett v. Watson, id. 372. Le Page v. M’Crea, 1 Wend. 164. Allen v. Sewall, 2 id. 327. M'Gregor v. Balch, 17 Vermont, 562. Neally v. Moulton, 12 N. Hamp. 485. See 6 Dana, 341. 3 Monroe, 130.