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1797.

de re

SCOTT

GODWIN

chief, 3

So alfo Fleta, 1.6. c.38.8.3. Competit etiam tenenti exceptio
dilatoria contrà petentem, cum folus petat, quod cum alio petere
deberet ; ficut unus vel una cohæredum vel vir hve uxor,
eroriá :" and Skin. 12. Anon. This thews that it may be
taken advantage of by plea in abatement; to thew that it must,
rid. Com. Dig. Abatement, E. 12. “ If one jointenant or joint-
“ merchant fue alone, and it is not pleaded in abatement, no ad-

vantage shall be taken of it in evidence.” And so it was held in trover, Skinn.640. Dockwray v. Dickinson; in trespass, Deering v. Moor, Cro. Eliz. 554.; in trover for injuries done to the inheritance, Brown v. Hedges, i Salk. 290. Blackburn v. Grove, cited Carth.63.; in trover by the aflignees of a bankrupt, Nelihorpe 1. Dorrington, 2 Lev. 113.; in an action on a statute, by one of several joint-owners of a thip, Sands v. Child, 1 Salk. 31. 3 Lev. 35. Skin. 361.; in trespass for seizing the Plaintiff's goods, L'Eglise v. Champanti, 2 Str. 820.; and in debt on band against one of feveral joiuit obligors, Whelpdale's case, 5 Co. 119. Cabell v.Vaughan, i Vent. 34. 1 Sid.420. S.C.238. S.P. It appears that if the Defendant in such cases do not plead in abatement, but plead in

Bac. Abr. 218. tit. Jointenants, either the general issue, i Mod. 102. per Hale Ch.J., or even the fact in var, Hollingworth 5. Ascue, Cro. Eliz. 355. 461. 494. 544. or demurs, 1 Vent. 34, i Sid.420. or even where the fact appears by the finding of the Jury, Cro. Eliz.554. 5 Co.119. Harmanv. Whitchlow, Latch. 152 Sir William Jones 142. the Plaintiff' must have judgment. If it appear in the declaration that there are other jointenants who do not join in the action, yet if it do not appear also that they are alive, the Defendant must plead in abatement, Benyon v. Palmer, $ Mod. 73. 1 Salk. 31. Cro. Eliz. 544. 6 T. R.766. So here it should have been averred that Robert Scott was alive, and pleaded in abatement; for nothing will be intended by the Court in favour of this objection. The only case in which it has been held that this objection may be taken on the general iflue, is L'Eglifev. Champanti, and there the dictum of Lord Raymond is confined to a:Tumpfit, which seems to be an innovation. Perhaps the Plaintiff here did not know whether Robert Scott was living or dead, and this a plea in abatement would have thewn.

Shepherd in 'reply. I thall pass by many of the cases cited, because they do not apply, and shall not agitate the question how far it is necessary to plead this matter in abatement on contracts in general. I contend that every person who brings covenant as

F 3

aslignce

1797.

SCOTT

GODWIN.

If one

aslignee of a reversion, muft state how the reversion comes to him;
and therefore, as the Court on this record cannot see that the Plain-
tiff is assignee of the reversion, he is not intitled to their judgment.
Supposea covenant made by the Defendant with John and Robert
Scott jointly, and an action brought by John Scott alone, the De-
fendant need not plead in abatement, because the objection would
appear on the record, which differs from the case of jointenants in
other contracts and in trespass. The case of Ecclejion and Wife,
Executors, &c. against Clipfham, 1 Saund. 153., is strong, to ihew
that one jointenant cannot fue alone on the covenant.
joint-covenantee cannot bring an action alone, neither can one
joint-aflignce of a reversion; for the action not being founded on
privity of contract, the Plaintiff muft fò state his title, as to thew
that he may fue under the statute of Hen. 8. in respect of his
estate. The Plaintiff should not have stated that Thomas Grice de-
vised, &c. whereby he became seised of the reversion, for John
Scott did not become feised, but John and Robert Scott jointly: he
should have stated that Robert Scott was dead, whereby he became
seised. The cases of joint-obligors are distinguishable from this,
for there the objection does not appear on the record, and it is still
the deed of the Defendant. As to what has been said, that the
estate of a trustee shall not be set up against the cestuy que truf,
that rule will not hold in covenant, though it does in cjectment:
if the Court could take notice of a cestuy que trust in covenant, they
might aswell in every action on a bond assigned allow the aflignee
to fue in his own name, inftcad of that of the asiignor.

Cur. adv. vult. The opinion of the Court was this day delivered by Eyre Ch.J. The question on this demurrer (which is now to be considered in the nature of a general demurrer, the special causes having been abandoned) is, whether the Plaintiff has shewn in his declaration a title to fue as assignee of the reversion. That title is to be collected from the operation of law on the deeds which are therein stated. And I take it to be most clear, that the operation of law upon

those deeds is to constitute John and Robert Scott joint-assignees. The effect of this is, that the Defendant's covenants became also by operation of lawcontracts with John and Robert Scott jointly; and that all causes of action to them, arising out of thesecontracts, must follow the nature of the contracts, and must arise to John and Robert Scott jointly. In fact John Scott has declared on a covenant made with John and Robert Scott, but has supposed himself

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capable of sustaining 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 case as it stands on the record, that is disputed. It has been argued, forft, That Robert Scott appearing to be a trustee for John Scott, his title cannot be set up against the cestuy que trust; and fecondly, That if it can, it must be by plea in abatement, and by that mode only. On the firft of these points we have had no difficulty. It appearing by the Plaintiff's own shewing, that Robert Scott was made joint-aflignee with John Scott (to which if it were necessary might be added) for purposes which require that the legal estate should remain in Robert Scott, we cai not by any presumption, or by any rule of law, take the legal estate out of him during his lifetime. It is not that the Defendant sets up the legal estate of the trustee against the cestuy que trust; but the cestuy que trust himself has set it up as part of his own title. On the fecond point we have paused: not in respect of any difficulty in deciding againft the point as it was stated; buton aquestion which the reasoning in fome of the numerous cafes which were alluded to by my brother MarShall 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 cases 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 persons ought to be made Co-defendants with the Defendant on record : and there is an eflential difference between these cases and cafes where the objection is, that there are not the proper parties Plaintiffs in the suit. Many Plaintiffs can have but one right, having but onc interest and onecause of action; which ought to be, and is indivisible, admitting of but one fatisfaction. But if in the nature of the thing, if on principles of law or authorities, it could be that a man should deriveafeveralinterest put of a joint obligation to himself and others, and that Plaintiffs could fue separately for their portions of one right, it is most obvious that it must vex and harass Defendants extremely. That this cannot be appears from Slingsbie's cafe, 5 Co. 18., and from the principle of those passages cited from Co. Litt. which shew that jointenants must plead and be impleaded jointly. Whereas in

1797.

SCOTT

GODIVIN.

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the case of Defendants, in respect of the satisfaction they are to
make to the Plaintiff, it is exactly the same thing whether they are
sued 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. 2013., Lord Mansfield
says: “ Every partner is liable to pay the whole; in what pro-
“ portion the others should contribute is a matter merely amongst
i themselves.” There is therefore more of form than of substance
in the objection that others should be made Co-defendants: how,
ever, the writ shall abate that has not made all the parties Co-de-
fendants, because the Plaintiff may have a better writ in the same
caufe; but the action shall not be barred, because the Plaintiff has
in himself an absolute right to sue the Defendant. The Defendant
can only infift, if he pleases, that the Plaintiff shall fue others with
him; and this advantage he may waive, where the objection does
not appear on the face of the record, and docs waive in that cafe,
unless l:e plead in abatement. Hence it is, that where one of
several joint obligors is fued, and non est factum is pleaded, the bet-
ter 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
also the deed of others. It is convenient that the obligors ihould
all be sued together, and therefore the Defendant may plead in
abatement; but it is not abfolutely necessary, 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 state in his own declaraq
țion 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
manycases,thatinassumpfit againstone Defendantand non-assump-
fit pleaded, evidence of a contract with more than one does not
maintain the issue, on the ground that it does not follow the con-
tract in the declaration; but I take the contrary to be now fully
settled upon the grounds which I have stated, and upon very old
authorities which are taken notice of in the case of Rice v, Shute,
and apply with equal force in assumpfit as in other cafes. In that
case, which is the last on this subject, Lord Mansfield lays great
stress on the difficulty under which Plaintiffs lie when they are to
sue partners. They know, says he, whom they deal with, but

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they do not know who are the secret partners; a plaintiff may be 1797) nonfuited twenty times before he finds them all out, or may be driven to file a bill for a discovery; and therefore he argues that convenience and the ends of justice required that if a Defendant would object that others are concerned with him in the tranfaction, he thould 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 interest 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 respects, as I have already observed, the case of Plaintiffs and Defendants essentially differs(a); and I conceive the rule of law respecting them is, generally speak- 14 Eaf 211. ing, (with perhaps one (6) 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 last case it is common experience, that where a joint contract appears in evidence on the general iflue, the Plaintiff is nonsuited; and there are many cases in the books, in which it has been held to be error for one co-obligce or one co-covenantee to fue alone. The consequence is, that the objection that it is neceflary 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 fhould the Defendant plead in abatement? the object of a plea in abatement is to introduce on the record some 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 ask 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 first of the cases cited for the Plaintiff, which I turned to, was that of Cabell v. Vaughan, 1 Vent. 34.; as it is short I will state the words: “ In an action of debt upon a bond against " one, and it appears another was jointly bound with him, where

SCOTT

GODWIN.

6) In Barnard v. Kenwortby, B. R. H. (-) Vernon v. Joferys, Str. 1146. Grea, 24 G. 3. which was affumpfit on a note, bam v. Robertson, 2 T.R. 282. Spencer Lord Mansfield iad; “If there are less v. Durant, 1 Show. 8 Bull. N.P. 158. Esp. * Plaintiffs ihan there ought to be, it goes N. P. 304. Cont. Ifaac and Paget v. Hitcha * to a nonfuit ; if lets Defendants, it is only cock, Cro. Eliz. 202. where it is said that if in ahatenient."

the Defendant plead in tar the Plaintiff (1) See Addison v. Overend, 6 T.R.766. Thall have judgment. und Seegwertb v. Overend, 7 T. R. 279.

upon

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