Lefebre v. Utter

DixoN, C. J. It appears to be well settled, say the court in Wheelwright v. Depeyster, 1 Johns., 486, that in actions of trover or trespass, the plaintiff may sue separately for his aliquot share or proportion of interest in a chattel, and that the defendant may give the joint interest of the other part owners in evidence in mitigation of damages, but that he cannot avail himself of the omission of the plaintiff to unite the other tenants in common with him in the suit, otherwise than by pleading it in abatement. He cannot take advantage of it at the trial. Mr. Chitty (1 Pl., 66) lays down the same rule in all actions in form ex delicto, and says that the defendant cannot, as in actions in form ex contractu, give in evidence the non-joinder as a ground of nonsuit, on the plea of the general issue, or demur, or move in arrest of judgment, or support a writ of error, although it appear on the face of the declaration or other pleading of the plaintiff that there is another party who ought to have joined. And if one of several part-owners of a chattel sue alone for a tort, and the defendant do not plead in abatement, the other part owners may afterwards sue alone for the injury to their undivided shares, and the defendant cannot plead in abatement of such action. By the code (R. S., chap. 125, secs. 5, 8, 9), the objection must be taken by demurrer or answer, and if not so taken, it is waived. It will be seen from these citations that the remedy by plea in abatement, or, as now, by demurrer or answer, is not very much favored, and that that given by way of apportionment of the damages is considered fully as efficacious, and quite sufficient to secure the defendant in all his legal rights. The only difference between this case and those in which [193] the question bas ordinarily arisen is, that here the plaintiff was sole owner of part of the property (stacks of hay) which was destroyed. The acts of trespass were the same both to the stacks of which the plaintiff was sole owner and those which he owned in common with another. This fact appearing in evidence, the defendant objected to any testimony as to the destruction of the stacks of which the plaintiff was but part owner. The court overruled the objection, and received the testimony, to which the defendant excepted. "We see no error in the ruling. Had the defendant answered that the plaintiff was but part owner of some of the stacks, the evidence as to those stacks would have been excluded. As it is, he has lost no substantial right, and the judgment ought not to be reversed. The other objection to the question put to the witness Loper, whether he ever saw the defendant turn his cattle into the plaintiff’s land, was not much urged at the argument. The plaintiff’s counsel disclaimed at the time any intention of charging the defendant with a willful trespass, and the court instructed the jury that it was not a case in which damages for such a trespass could be given. This seems to have obviated all objection to the form of the question, if any existed, and to show that the jury were not misled to the prejudice of the defendant. Judgment affirmed.