1797. SCOT'S V. GODWIN. So alfo Fleta, 1.6. c.38. .3. Competit etiam tenenti exceptio Shepherd in 'reply. I fall pafs by many of the cafes cited, because they do not apply, and fhall not agitate the question how far it is neceffary to plead this matter in abatement on contracts in general. I contend that every perfon who brings covenant as affignce F 3 1797. SCOTT V. GODWIN. If one affignee of a reverfion, muft ftate how the reverfion comes to him; Cur. adv. ult. The opinion of the Court was this day delivered by Eyre Ch. J. The queftion on this demurrer (which is now to be confidered in the nature of a general demurrer, the fpecial caufes having been abandoned) is, whether the Plaintiff has fhewn in his declaration a title to fue as affignee of the reverfion. That title is to be collected from the operation of law on the deeds which are therein ftated. And I take it to be most clear, that the operation of law upon those deeds is to conftitute John and Robert Scott joint-affignees. The effect of this is, that the Defendant's covenants became alfo by operation of law contracts with John and Robert Scott jointly; and that all caufes of action to them, arifing out of thefe contracts, muft follow the nature of the contracts, and muft arife to John and Robert Scott jointly. In fact John Scott has declared on a covenant made with John and Robert Scott, but has fuppofed himself capable capable of fuftaining an action alone for the breach of it. Now that this is fundamentally wrong there can be no doubt; and the principle on which it is wrong was not denied in the argument: it is only the application of the principle to this particular cafe as it ftands on the record, that is difputed. It has been argued, frft, That Robert Scott appearing to be a trustee for John Scott, his title cannot be set up against the celuy que truft; and fecondly, That if it can, it must be by plea in abatement, and by that mode only. On the firft of thefe points we have had no difficulty. It appearing by the Plaintiff's own fhewing, that Robert Scott was made joint-affignee with John Scott (to which if it were neceffary might be added) for purposes which require that the legal estate fhould remain in Robert Scott, we cannot by any prefumption, or by any rule of law, take the legal estate out of him during his lifetime. It is not that the Defendant fets up the legal eftate of the truftce against the ceftuy que trust; but the ceftuy que trust himself has fet it up as part of his own title. On the fecond point we have paused: not in respect of any difficulty in deciding against the point as it was ftated; but on a question which the reasoning in fome of the numerous cafes which were alluded to by my brother Marfhall fuggefted: and which is this, whether on a general demurrer to a declaration of this kind, it can be intended in fupport of the declaration that the jointenant, not a party to the action, is dead: in which event the whole legal eftate would unite in John Scott, and he alone might fue. In the great bulk of the cafes where it has been holden, that if there are not proper parties to a record, advantage must be taken of it by a plea in abatement, the objection has been, that other perfons ought to be made Co-defendants with the Defendant on record: and there is an effential difference between thefe cafes and cafes where the objection is, that there are not the proper parties Plaintiffs in the fuit. Many Plaintiffs can have but one right, having but one intereft and one caufe of action; which ought to be, and is indivifible, admitting of but one fatiffaction. But if in the nature of the thing, if on principles of law or authorities, it could be that a man fhould derive a feveral intereft put of a joint obligation to himself and others, and that Plaintiffs could fue feparately for their portions of one right, it is moft obvious that it muft vex and harafs Defendants extremely. That this cannot be appears from Slingsbie's cafe, 5 Co. 18., and from the principle of those paffages cited from Co. Litt. which fhew that jointenants must plead and be impleaded jointly. Whereas in 1797. SCOTT ย. GODWIN. the cafe of Defendants, in refpect of the fatisfaction they are to make to the Plaintiff, it is exactly the fame thing whether they are fued fingly, or with others, for every individual Co-defendant is ultimately liable to the whole demand, and execution may be had against any one. In Rice v. Shute, 5 Burr. 2613., Lord Mansfield fays: "Every partner is liable to pay the whole; in what pro"portion the others fhould contribute is a matter merely amongst "themselves." There is therefore more of form than of fubftance in the objection that others fhould be made Co-defendants: however, the writ shall abate that has not made all the parties Co-defendants, because the Plaintiff may have a better writ in the fame caufe; but the action fhall not be barred, becaufe the Plaintiff has in himself an abfolute right to fue the Defendant. The Defendant can only infift, if he pleases, that the Plaintiff fhall fue 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 cafe, unless le plead in abatement. Hence it is, that where one of feveral joint obligors is fued, and non eft factum is pleaded, the better opinion is that a Defendant shall not be allowed to object that there are other co-obligors, for the deed is his (a), though it is alfo the deed of others. It is convenient that the obligors should all be fued together, and therefore the Defendant may plead in abatement; but it is not abfolutely neceffary, and therefore he cannot plead in bar; nor can he take advantage of the objection on the plea of non eft factum after oyer. I do not mean to enter into the question, whether if the Plaintiff ftate in his own declaration that the bond was made by two, the Defendant cannot take advantage of it: but where the declaration is right upon the face of it, if there be no plea in abatement, the Defendant cannot take advantage of it afterwards. I admit that it has been established by manycafes, that in affumpfit against one Defendant and non-affumpfit pleaded, evidence of a contract with more than one does not maintain the iffue, on the ground that it does not follow the contract in the declaration; but I take the contrary to be now fully fettled upon the grounds which I have stated, and upon very old authorities which are taken notice of in the cafe of Rice v, Shute, and apply with equal force in affumpfit as in other cafes. In that cafe, which is the laft on this fubject, Lord Mansfield lays great ftrefs on the difficulty under which Plaintiffs lie when they are to fue partners. They know, fays he, whom they deal with, but 1797. SCOTT V. GODWIN. they do not know who are the fecret partners; a plaintiff may be nonfuited twenty times before he finds them all out, or may be driven to file a bill for a difcovery; and therefore he argues that convenience and the ends of juftice required that if a Defendant would object that others are concerned with him in the transaction, he fhould plead in abatement, and fo tell the Plaintiff whom he was to fue. Certainly this reasoning has its weight as to co-partners, being made Co-defendants, but as to Plaintiffs it does not apply; they are under no difficulty of this kind; every Plaintiff knows who is concerned in intereft with him; he cannot have a better writ given him by a plea in abatement than he might have had without it. In this, and in other refpects, as I have already obferved, the cafe of Plaintiffs and Defendants effentially differs (a); and I conceive the rule of law refpecting them is, generally speak- 14 Eaft 211. ing, (with perhaps one (b) exception,) different. I take it to have been folemnly adjudged in several (c) cafes, and to be the known received law, that one co-covenantee, one co-obligee, or one joint contractor by parol, cannot fue alone. In the laft cafe it is common experience, that where a joint contract appears in evidence on the general iffue, the Plaintiff is nonfuited; and there are many cafes in the books, in which it has been held to be error for one co-obligce or one co-covenantee to fue alone. The confequence is, that the objection that it is neceffary to plead this matter in abatement is ill-founded. But where it appears on the record that the Plaintiff has a better writ according to his own ftatement, why should the Defendant plead in abatement? the object of a plea in abatement is to introduce on the record fome new fact, which can only be done in that manner; but where the fact appears in the declaration itself, what remains for the Defendant but to afk the judgment of the Court? It may be answered that the Defendant ought to plead the variance between the writ and the declaration; but there are cafes which establish that it may be taken advantage of in error, which could never be, if it were pleadable in abatement of the writ, The firft of the cafes cited for the Plaintiff, which I turned to, was that of Cabell v. Vaughan, 1 Vent. 34.; as it is short I will ftate the words: "In an action of debt upon a bond against "one, and it appears another was jointly bound with him, where (a) In Barnard v. Kenworthy, B. R. H. 24 G. 3. which was affumpfit on a note, Lord Mansfield laid; "If there are lefs Plaintiffs than there ought to be, it goes ❝ to a nonfuit; if lets Defendants, it is only " in abatenient." (b) See Addison v. Overend, 6 T. R. 766. and Sedgwerth v. Overend, 7 T. R. 279. (6) Vernon v. Jefferys, Str. 1146. Grabam v. Robertfon, 2 T.R. 282. Spencer v. Durant, I Show. 8 Bull. N. P. 158. Esp. NP. 304. Cont. Ifaac and Paget v. Hitchcock, Cro. Eliz. 202. where it is faid that if the Defendant plead in bar the Plaintiff shall have judgment. upon |