yet he must be joined as a defendant, 3 Taunt. 307, unless in actions upen such contracts, as, if made by infants, are void, and not merely void. able; as upon a bill of exchange, &c., in which case the plaintiff may declare upon it as accepted, &c. by the adult partner in the names of both. 4 Taunt. 468. If one partner be dead the action must be brought against the survivor alone, without joining the executor of the deceased partner; because although the executor is liable over for a moiety of the debt, &c. to be recovered, yet as the judgment against him would be different from that against the surviving partner, the one being de bonis testatoris, the other de bonis propriis, he cannot be joined as a defendant. Carth. 170, 171. 3 Lev, 290. 2 Lev. 228. Fortesc. 181. And the surviving partner in such a case may be sued as in his own right, without stating him to be the surviving partner ; 2 T. R. 479, cit. ; and therefore where the declaration contained but one set of counts against the defendant in his own right, the court held that the plaintiff might recover for a demand against the defendant in his own right, and also for a distinct demand against him as the surviving partner of another. 1 Barn. & Ald. 29. As to dormant partners, it seems they must be joined as defendants, (although not as plaintiffs, see ante, p. 52,) otherwise the defendant may plead the non-joinder in abatement. 1 Marsh, 246; for it is fair that the defendant should have an opportunity in this manner, of making his partner contributable to the debt or damages to be recovered. And it is very clear that a plaintiff may join a dormant partner as a defendant, if he can prove him to be such. 7 East. 209. And see 1 H. Bl. 37. 1 M. & S. 412. But the action should be brought against such persons only as were partners when the contract was made, and not merely at the time of the action brought. 4 Taunt. 582. 1 East, 48. See 1 Marsh. 248.

Executors.] In actions against executors, you may make all those defendants who are named as executors in the will, whether they have proved the will or not; but all those who have proved the will, R. 1 Lev. 161. D. 9 Co. 37 b. Clift. 15. R. in Exchequer, M. 13 G. 1. Rast. Ent. 325 a; and also in actions against administrators all who have administered. Rast. Ent. 324 c, must be made defendants, other. wise the non-joinder may be pleaded in abatement. But for an act done. by one of the executors only, an action may be maintained against him alone as in detinue of charters, where the charters came to the hands of one of the executors only; Th. D. l. 5, c. 12, s. 1; or in dower against one executor only, as guardian, who alone possessed the ward. 8 Ed. 3, 420. Th. D. l. 5, c. 12, s. 3. So, if one of the executors die, the action must be brought against the survivor alone, without joining the executors of the executor who died. Th. D. l. 5, c. 12, s. 5. R. 4

Leon. 193. So, in an action against an executor, you cannot join the heir, 18 Ed. 3, 4. Th. D. l. 5, c. 12, s. 2, 7, or terre tenants. 27 Ed. 3, 80. Th. D. l. 5, c. 12, s. 7. Com. Dig. Abatement, F. 10. Non-joinder.] In actions ex contractu, brought against some only *of several persons who should have been jointly sued, the defendants must plead the non-joinder in abatement, there being no other way of taking advantage of it, 5 Bur. 2611. 2 W. Bl. 947. 5 Co. 119. 1 Str. 503. 1 Saund. 291 c. 154, (n. 1,) even in the case of a bill of exchange or promissory note. 1 Barn. & Ald. 224. So, in debt on bond, if the bond be joint and several, and two only of three obligors be sued, the defendants must plead the non-joinder in abatement. 10 H. 7, 16. 27 H. 8, 6, pl. 29. 1 Saund. 291 e. If indeed in debt on bond, it appear upon the face of the declaration that another obligor, not named, also sealed the deed, and that he is alive, the court will arrest the judgment, 1 Saund. 291 b, or the defendant may plead the non-joinder in abatement, at his option; 2 Taunt. 254; but it is no ground of nonsuit, on the plea of non est factum. Id.

So, in actions ex quasi contractu, in which (as already mentioned, ante, p. 67,) the same persons must be made defendants as if the action were in form ex contractu, the only mode of taking advantage of a non-joinder is by plea in abatement. Carth. 62, 63. 6 T. R. 369. 2 New. Rep. 365, and see 2 Salk. 440.

In actions ex delicto, which we have seen (ante, p. 67,) may be brought against all or any of the persons who jointly committed the injury, nonjoinder of course cannot be pleaded in abatement, or taken advantage of in any other way. But where such an action is brought against a tenant in common, joint-tenant or co-parcener, for any thing respecting the land held in common, &c. in which case all the tenants in common, &c. we have seen (ante, p. 65, 66,) should be jointly sued, the nonjoinder should be pleaded in abatement.

In actions against executors, as you are compellable to join only those who have administered, a plea in abatement for non-joinder must therefore aver that the executor omitted had administered. Bro. Executors, 20, 88. 1 Lev. 161. Went. Ex. 25. Clift. Ent. 15, pl. 36, 37. Lib. Plac. 1, pl. 8. 1 Saund. 291 g.

By 3 & 4 W. 4, c. 42, s. 8, "no plea in abatement for the non-joinder of any person as a co-defendant, shall be allowed in any court of common law, unless it shall be stated in such plea that such person is resident within the jurisdiction of the court, and unless the place of residence of such person shall be stated with convenient certainty in an affidavit verifying such plea." See De Mautort v. Saunders, 1 B. & Ad. 398.

And by s. 9, "to any plea in abatement in any court of law, of the non-joinder of another person, the plaintiff may reply that such person has been discharged by bankruptcy and certificate, or under an act for the relief of insolvent debtors."

And by s. 10, " in all cases in which, after such plea in abatement, the plaintiff shall, without having proceeded to trial upon an issue thereon, commence another action against the defendant or defendants in the action in which such plea in abatement shall have been pleaded, and the person or persons named in such plea in abatement as joint contractors, if it shall appear by the pleadings in such subsequent action, or on the evidence at the trial thereof, that all the original defendants are liable, but that one or more of the persons named in such plea in abatement or any subsequent plea in *abatement are not liable as a contracting party or parties, the plaintiff shall nevertheless be entitled to judgment or to a verdict and judgment, as the case may be, against the defendant or defendants who shall appear to be liable; and every defendant who is not so liable shall have judgment, and shall be entitled to his costs as against the plaintiff, who shall be allowed the same as costs in the cause against the defendant or defendants who shall have so pleaded in abatement the non-joinder of such person; provided that any such defendant who shall have so pleaded in abatement, shall be at liberty on the trial to adduce evidence of the liability of the defendants named by him in such plea in abatement."

And by Rule Pl. H. 4 W. 4, 11, s. 20, if after a plea in abatement of the non-joinder of another person, the plaintiff shall, without having proceeded to a trial on an issue thereon, commence another action against the defendant or defendants in the action in which such plea in abatement shall have been pleaded, and the person or persons namned in such plea in abatement as joint contractors, the commencement of the declaration shall be in the following form:

(Venue.) A. B. by E. F. his attorney [or in his own proper person,]

complains of C. D. and G. H. who have been summoned to answer the said A. B., and which said C. D. has heretofore pleaded in abatement the non-joinder of the said G. H. &c. [The same form to be used, mutatis mutandis, in cases of arrest or detainer.]

Mis-Joinder.] In actions ex contractu, if persons be joined as defendants, who should not, advantage may be taken of the mis-joinder at the trial upon the general issue: or if it appear upon the face of the declaration, the defendants may demur generally, or move in arrest of

judgment, or bring a writ of error. The same rule also applies to actions ex quasi contractu, such as actions against carriers, 2 New Rep. 454. But see 3 East. 62, or actions upon a warranty, 12 East. 452, or the like.

In actions ex delicto, mis-joinder cannot in general be objected to; but the effect of it will be that the parties, who should not have been included in the action, will be entitled to a verdict at the trial. Yet where the tort could not be joint, as in an action for words against two, the defendants may take advantage of the mis-joinder either by demurrer, 1 Ro. Abr. 781, O. pl. 1. Sty. 349, or by motion in arrest of judg ment. Palm. 313. Cro. Jac. 647. 1 Bulst. 15.

In real actions, the defendants may plead several tenancy, entire tenancy, or non-tenure, in abatement. See Com. Dig. Abatement, F. 12,

13. 14.

As to the cases in which mis-joinder may be aided by the entry of a Nolle Prosequi, see 2 Arch. Pr. C. B. 256.

*Having thus ascertained whether the party, who has received the injury may sue, and whether the person, who has committed it, may be sued; having ascertained the form of action to be adopted, and that the time limited for bringing such an action has not elapsed; and having satisfied yourself as to the persons who must be made plaintiffs and defendants to the action: the next step is to sue out process, in order to bring the defendants before the court; after which you may prepare the declaration and other pleadings to issue, and the evidence necessary to support them, according to the rules laid down in the remainder of this work.

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73*

* BOOK I.

PLEADING AND EVIDENCE GENERALLY.

PART. I.

PLEADING GENERALLY.

CHAPTER IV.

THE DECLARATION.

SECT. 1. The Commencement.

2. Statement of the Cause of Action.
1. The Matter to be stated.

2. The Manner of stating it.

3. The Conclusion.

4. Joinder of Counts.

5. Defects, in what Cases aided.

SECT. I.

Commencement of the Declaration.

A DECLARATION may be divided into three parts:-The Commencement-The statement of the cause of action-and the conclusion. These shall be treated of in the first three sections of this chapter; in the fourth section, we shall treat of the joinder of counts; and in the fifth, of the manner in which defects in the declaration may be aided.

By Reg. Gen. M. 3 W. 4, s. 15, every declaration shall in future be intituled in the proper court, and of the day of the month and year in which it is filed or delivered, (see also Reg. Pl. H. 4 W. 4, I. s. 1,) and shall commence as follows:

DECLARATION AFTER SUMMONS.

Venue. A. B., by E. F. his attorney [or in his own proper person] complains of C. D., who has been summoned to answer the said A. B., &c. *DECLARATION after arreST, WHERE THE PARTY IS NOT IN CUSTODY. Venue. A. B., by E. F. his attorney [or in his own proper person] complains of C, D., who has been arrested at the suit of the said A. B., &c.